UNIVERSITY  OF  ILLINOIS 
LIBRARY 


Class  Book  Volume 

5 aaS  'MSB  ' 


■ h 


CASES  ON  RESTRAINT  OF  TRADE 


PART  I 


EDITED  BY 

BRUCE  WYMAN 


SECOND  EDITION 


CAMBRIDGE 

HARVARD  LAW  REVIEW  ASSOCIATION 
190  4 


Y,\ 


) 


Copyright  1902,  By  Bruce  Wyman,  1893,  By  James  Barr  Ames, 
and  1901,  1902,  By  Jeremiah  Smith. 

All  rights  reserved. 


ELECTROTYPED  AND  PRINTED  BY  H.  0.  HOUGHTON  AND  CO. 
CAMBRIDGE,  MASS.,  U.  S.  A. 


_//!  oo>  1 ■'■Bfi'e 


CASES  ON  RESTRAINT  OF  TRADE. 


CHAPTER  I.  — COMPETITION. 

SECTION  I.  — EXTENT  OF  COMPETITION. 

A.  Free  Competition. 

ANONYMOUS. 

In  the  Common  Pleas,  Hilary  Term,  1410. 

[. Reported  in  Year  Boole , 11  Henry  IV.,  folio  47,  placitum  21.] 

Two  masters  of  a grammar  school  at  Gloucester  brought  a writ  of 
trespass  against  another  master,  and  counted  that  the  defendant  had 
started  a school  in  the  same  town,  so  that  whereas  the  plaintiffs  had 
formerly  received  40 d.  or  two  shillings  a quarter  from  each  child,  now 
they  got  only  12 d.,  to  their  damage,  &c. 

Tillesley.  His  writ  is  worthless. 

Skrene . It  is  a good  action  on  the  case,  and  the  plaintiffs  have 
shown  well  enough  how  they  are  damaged  ; wherefore,  &c. 

Hankford,  J.  There  may  be  damnum  absque  injuria.  As  if  I have 
a mill,  and  my  neighbor  builds  another  mill,  whereby  the  profit  of 
mine  is  diminished,  I shall  have  no  action  against  him ; still  I am 
damaged,  quod  Thirning,  C.  J.,  concessit , and  said  that  the  instruc- 
tion of  children  is  a spiritual  matter  ; and  if  one  retains  a master  in 
his  house  to  teach  his  children,  it  is  a damage  to  the  common  master 
of  the  town,  yet  I think  he  will  have  no  action. 

Skrene.  The  masters  of  Paul’s  claim  that  there  shall  be  no  other 
masters  in  all  London  except  themselves. 

Horton  demurred  because  the  action  was  not  maintainable. 

Hill,  J.  There  is  no  ground  to  maintain  this  action,  since  the 
plaintiffs  have  no  estate,  but  a ministry  for  the  time ; and  though 
another  equally  competent  with  the  plaintiffs  comes  to  teach  the 
children,  this  is  a virtuous  and  charitable  thing,  and  an  ease  to  the 
people,  for  which  he  cannot  be  punished  by  our  law. 

Skrene.  If  a market  is  erected  to  the  nuisance  of  my  market,  I shall 
have  an  assize  of  nuisance ; and  in  a common  case  if  those  coming  to 
my  market  be  disturbed  or  beaten,  whereby  I lose  my  toll,  I shall  have 
a good  action  on  my  case ; so  here. 


£07449 


2 


JOHNSON  V.  HITCHCOCK. 


[CHAP.  I. 

Hankford,  J.  Not  the  same  case,  because  in  the  case  put  you  have 
a freehold  and  inheritance  in  the  market ; but  here  the  plaintiffs  have 
no  estate  in  the  schoolmastership,  &c.,  but  for  an  uncertain  time,  and 
it  would  be  against  reason  for  a master  to  be  hindered  from  keeping 
school  where  he  pleases,  unless  where  a university  was  incorporated 
or  a school  founded  in  ancient  times. 

And  the  opinion  of  the  court  was  that  the  writ  would  not  lie. 
Wherefore  it  was  awarded  that  they  should  take  nothing,  &c. 


JOHNSON  v.  HITCHCOCK. 

In  the  Supreme  Court  of  New  York,  1818. 

[. Reported  15  Johnson , 185.] 

In  error,  on  certiorari  to  a justice’s  court. 

This  was  an  action  on  the  case  brought  by  the  defendant  in  error 
against  the  plaintiff  in  error,  for  a disturbance  of  his  right  of  ferry, 
and  his  use  and  enjoyment  thereof,  and  hindering  persons  from  cross- 
ing at  the  same.  It  appeared  that  the  defendant  below  had  en- 
deavored to  divert  travellers  from  the  ferry  of  the  plaintiff,  repre- 
senting it  not  to  be  as  good  as  another  near  it,  and  had,  on  many 
occasions,  succeeded.  No  evidence  was  offered  on  the  part  of  the 
defendant,  and  the  jury  found  a verdict  for  the  plaintiff  below  for 
twenty-two  dollars  and  sixteen  cents,  on  which  judgment  was  ren- 
dered. 

Per  Curiam.  It  is  clear,  from  the  evidence,  that  the  defendant 
below  has,  on  many  occasions,  interfered,  and  prevented  persons 
from  crossing  at  the  plaintiff’s  ferry ; and  if  there  is  a good  cause  of 
action,  the  testimony  shows  an  injury,  probably,  to  the  amount  of  the 
recovery.  But  there  is  no  principle  on  which  this  action  can  be  sus- 
tained. The  evidence,  imperfectly  as  it  is  stated,  is  sufficient  to  war- 
rant the  conclusion,  that  these  are  rival  ferries  near  each  other,  and 
that  the  defendant  below  was  unfriendly  to  the  plaintiff’s  ferry,  and 
endeavored  to  turn  the  custom  to  the  other.  This  action  does  not 
appear  to  be  founded  on  any  slander  of  title,  even  admitting  that  an 
action  of  that  kind  might  be  sustained  in  a justice’s  court.  Both 
ferries,  from  anything  that  appears  to  the  contrary,  have  equal 
rights,  and  equal  claims  to  be  upheld  and  supported,  and  it  cannot 
furnish  a cause  of  action  that  travellers  have  been  persuaded  to  cross 
the  one  rather  than  the  other.  If  an  action  would  lie  in  this  case,  it 
would  in  all  cases  of  rival  business,  where  anv  means  are  used  to 
draw  custom ; and  if  this  were  once  admitted,  it  would  be  difficult 
to  know  where  to  stop.  The  judgment  must  be  reversed. 

Judgment  reversed . 


SECT.  I.] 


SNOWDEN  V.  NOAH. 


3 


SNOWDEN  v.  NOAH. 

In  the  Court  of  Chancery  of  New  York,  1825. 

[ Reported  Hopkins , 351.] 

The  Chancellor.  The  defendant  Noah  was  the  editor  but  not  the 
proprietor  of  the  newspaper  establishment  called  the  National  Advo- 
cate ; and  immediately  after  the  sale  of  that  establishment  by  its 
former  proprietor  to  the  complainant,  Noah  established  another  news- 
paper, under  the  title  of  the  New  York  National  Advocate.  This 
new  gazette,  thus  established,  is  sent  to  the  subscribers  of  the  former 
National  Advocate,  and  Noah  has  solicited  and  continues  to  solicit 
the  support  of  the  patrons  of  the  former  paper  and  of  the  public  to 
his  new  paper.  This  is  briefly  and  in  substance  the  case  upon  which 
an  injunction  is  now  asked. 

The  business  of  printing  and  publishing  newspapers,  being  equally 
free  to  all,  the  loss  to  one  newspaper  establishment,  which  may  follow 
from  the  competition  of  any  rival  establishment,  is  merely  a conse- 
quence of  the  freedom  of  this  occupation,  and  gives  no  claim  to  legal 
redress.  But  a newspaper  establishment  is  also  a subject  of  pro- 
perty ; and  so  far  as  the  rights  of  such  an  establishment  are  private 
and  exclusive,  this  species  of  property,  like  any  other,  is  entitled  to 
the  protection  of  the  laws. 

The  material  property  of  the  National  Advocate  is  not  here  in 
question.  The  printing  office,  press,  types,  and  other  materials  of  a 
printing  establishment,  are  subjects  of  exclusive  right ; and  the 
injuries  alleged  in  the  bill,  in  respect  to  these  subjects  in  this  case, 
are  matters  for  which  redress  must  be  sought  in  the  courts  of  law. 

The  subject  in  respect  to  which  an  injunction  is  asked  is  what  is 
called  the  good  will  of  the  establishment,  or  the  custom  and  support 
which  the  National  Advocate  had  before  received  from  its  subscribers 
and  patrons,  or  from  the  public.  The  effort  of  Noah  is  to  obtain  for 
his  newspaper  the  support  of  the  public  in  general,  and  especially 
the  custom  and  good  will  of  the  friends  of  the  National  Advocate  ; 
this  object  is  distinctly  avowed ; and  an  open  appeal  is  made  to  the 
friends  of  the  National  Advocate  and  to  the  public  to  give  their  sup- 
port to  the  new  paper.  The  question  is,  whether  the  acts  of  Noah 
are  an  invasion  of  the  private  rights  of  Snowden,  as  the  proprietor  of 
the  National  Advocate,  or  merely  an  exercise  of  the  common  right  to 
print  and  publish  a new  journal,  and  to  obtain  for  it  patronage. 

The  open  appeal  made  to  the  public  in  favor  of  the  new  journal,  as 
a new  and  distinct  paper,  seems  to  remove  from  this  case  every  objec- 
tion. Noah  is  at  liberty  to  invite  the  subscribers  and  patrons  of  the 
National  Advocate  to  give  him  their  support ; and  they  are  entirely 
free  to  accept  or  reject  his  invitation.  They,  like  others,  may  give 
their  support  to  either,  or  neither,  or  both  of  these  papers.  The  only 


4 


SNOWDEN  V.  NOAH. 


[CHAP.  I. 

circumstance  in  this  case,  which  has  any  appearance  of  an  undue 
encroachment  upon  the  rights  of  Snowden,  is  that  Noah’s  new  paper 
is  published  under  a name  nearly  the  same  with  that  of  Snowden. 
But  the  name  of  the  new  paper  is  sufficiently  distinct  from  the  name 
of  Snowden’s  paper  to  apprize  all  persons  that  these  are  really  dif- 
ferent papers.  These  different  titles  and  the  different  matters  which 
must  appear  in  two  daily  gazettes  seem  to  afford  all  the  information 
which  can  be  desired  by  those  who  choose  to  give  their  patronage  to 
either  of  these  papers.  I do  not  perceive  that  any  person  can  be 
misled  in  this  respect ; and  the  whole  case  seems  to  be  nothing  more 
than  an  open  competition  between  two  newspaper  establishments  for 
the  good  will  of  those  who  were  the  patrons  of  the  first  establish- 
ment, and  for  the  favor  of  the  public. 

The  good  will  of  an  established  trade,  the  custom  of  an  inn,  and 
the  right  of  a publisher  of  books,  may  be  injured  by  acts  of  deception 
or  piracy;  but  the  injury  for  which  redress  is  given  in  such  cases 
results  from  the  imposture  practised  upon  the  customers  of  an  exist- 
ing establishment,  or  upon  the  public.  When  the  friends  of  an  exist- 
ing newspaper  and  the  public  are  informed  by  a rival  newspaper 
that  the  two  papers  are  not  the  same,  but  are  distinct  establishments, 
there  is  no  deception ; and  the  detriment  which  either  establishment 
may  suffer  from  the  competition  of  the  other  results  from  the  free 
option  of  those  who  choose  to  give  their  support  to  one  establishment 
in  preference  to  the  other.  This  employment  is  subject  to  all  the 
incidents  of  a free  competition  ; and  when  no  deception  is  practised, 
the  award  of  the  public,  or  of  those  who  patronize  newspapers,  must 
determine  the  patronage  which  each  rival  press  shall  receive. 

The  adjudged  cases  cited  in  support  of  this  application  are  Hogg 
v.  Kirby , 8 Yesey  junior,  215,  and  Crutwell  v.  Lye , 17  Vesey  junior, 
336.  These  cases  seem  to  be  rather  authorities  against  the  applica- 
tion. In  the  last  of  them,  the  substance  of  Lord  Eldon’s  opinion  was 
expressed  in  the  following  sentence,  which  is  directly  applicable  to 
this  case.  “ It  amounts  to  no  more  than  that  he  asserts  a riglit  to  set 
up  this  trade,  and  has  set  it  up,  as  the  like,  but  not  the  same  trade, 
with  that  sold ; taking  only  those  means,  which  he  had  a right  to 
take,  to  improve  it ; and  there  is  no  fact,  amounting  to  fraud,  upon 
the  contract  made  with  the  plaintiff.” 

It  appears  to  me  that  every  person  who  is  disposed  to  patronize  or 
support  the  National  Advocate  may  do  so,  without  being  deceived  or 
misled  by  the  existence  or  publication  of  the  New  York  National 
Advocate.  The  struggle  of  these  parties  seems  to  be  merely  a com- 
petition, in  which  there  is  no  imposture  or  deception.  I do  not  per- 
ceive any  fraud;  but  if  there  is  any  question  whether  the  acts  of 
Noah  are  a fair  competition  or  a fraudulent  interference  with  the 
establishment  of  Snowden,  it  is  a question  wholly  uncertain ; and  as 
a doubtful  matter  of  fact,  it  should  be  left  to  the  trial  by  jury,  in  the 
ordinary  course  of  law.  The  writ  of  injunction  is  a most  important 
remedy ; but  it  is  used  to  protect  rights  which  are  clear,  or  at  least 


SECT.  I.]  PUDSEY  COAL  GAS  CO.  V.  CORPORATION  OF  BRADFORD.  5 

free  from  reasonable  doubt.  Upon  all  the  facts  of  the  case,  the 
motion  for  an  injunction  is  denied. 


PUDSEY  COAL  GAS  CO.  v.  CORPORATION  OF  BRADFORD. 

In  Chancery,  1872. 

[ Reported  L.  R.  15  Eq.  167.] 

Sir  R.  Malins,  V.  C.  This  is  a demurrer  by  the  mayor,  aldermen, 
and  burgesses  of  the  borough  of  Bradford  to  a bill  filed  against  them 
by  the  Pudsey  Coal  Gas  Company.  The  prayer  of  the  bill  asks  for  a 
declaration  that  the  defendants,  the  corporation,  are  not  entitled  to 
supply  gas  to  any  street,  building,  or  place  which  is  not  within  the 
limits  of  their  parliamentary  boundary,  and  for  an  injunction  to 
restrain  them  from  supplying  gas  beyond  those  limits. 

It  appears  from  the  allegations  of  the  bill  that  the  township  of  Pud- 
sey is  immediately  contiguous  to  the  borough  of  Bradford,  and  that 
the  corporation  of  Bradford  have  had  transferred  to  them,  under  the 
authority  of  the  Bradford  Corporation  Gas  and  Improvement  Act, 
1871,  the  rights  of  the  Bradford  Gaslight  Company,  which  included 
compulsory  powers  to  break  up  streets,  and  to  lay  down  pipes,  and  to 
do  other  acts  for  the  purpose  of  enabling  them  to  supply  gas  to  the 
town  of  Bradford  and  some  adjoining  districts.  It  appears  that  no 
part  of  the  township  of  Pudsey  was  within  the  borough  of  Bradford, 
or  within  the  limits  to  which  the  Bradford  Gaslight  Company’s  Acts 
applied.  Under  two  other  Acts  of  Parliament  the  plaintiffs  had 
similar  compulsory  powers  with  respect  to  the  township  of  Pudsey. 
By  one  of  them,  the  Pudsey  Gas  Act,  1855,  the  limits  were  prescribed 
within  which  it  might  be  put  in  force,  and  the  corporation  had,  under 
their  act,  only  the  same  powers  as  had  previously  belonged  to  the 
Bradford  Gaslight  Company. 

It  is,  therefore,  perfectly  clear  that  the  parliamentary  powers  of 
the  Bradford  corporation  were  limited  to  the  borough  of  Bradford 
and  certain  specified  adjoining  places,  and  those  of  the  plaintiffs 
were  limited  to  the  township  of  Pudsey  and  certain  other  adjoining 
localities.  The  argument  on  the  part  of  the  plaintiffs  is,  that  the 
Bradford  corporation  are  a body  existing  for  certain  special  purposes, 
and  that  beyond  duties  belonging  to  those  purposes  they  have  no 
right  to  do  anything  ; and  that,  as  regards  the  supply  of  gas,  they  have 
no  right  to  go  beyond  their  statutory  limits.  There  is  much  to  be  said 
for  this  view.  I am  very  much  inclined  to  think  that,  on  principle, 
I should  have  come  to  the  same  conclusion.  But  I think  that  the 
question  has  been  already  determined. 

I think  it  is  quite  clear  that  a gas  company  have  no  right  to  do 
anything  which  would  amount  to  a nuisance,  except  where  they  have 
parliamentary  powers  ; but  there  is  nothing  to  prevent  them  supply- 


6 


HOPKINS  V.  GREAT  NORTHERN  RAILWAY.  [CHAP.  I. 

in g gas  just  as  they  like,  if  they  can  do  so  without  causing  any  incon- 
venience. I consider,  therefore,  that  Attorney- General  v.  Cambridge 
Consumers  Gas  Company,1  and  the  cases  like  it,  have  very  little  to  do 
with  the  present  question.  But  the  case  which  has  most  bearing  on 
the  present  case  is  Stockport  District  Waterworks  Company  v.  Cor- 
poration of  Manchester ,2  and  it  seems  to  be  entirely  against  the  plain- 
tiffs. The  plaintiffs  in  that  case  were  a company  having  power  to 
take  water  from  a particular  river  for  the  supply  of  a particular  dis- 
trict, and  the  defendants,  the  corporation  of  Manchester,  had  allowed 
the  other  defendants,  who  were  called  the  Stockport  Waterworks 
Company,  to  effect  a junction  with  their  pipes,  and  so  draw  water  for 
the  supply  of  part  of  the  plaintiffs’  district.  The  plaintiffs  then  filed 
a bill  against  the  corporation  and  the  Stockport  Waterworks  Com- 
pany for  an  injunction  to  restrain  them  supplying  water  in  this  way. 
A demurrer  was  filed  and  was  allowed  by  the  Vice-Chancellor  before 
whom  the  case  came,  and  the  case  went  on  appeal  before  Lord  West- 
bury,  who  laid  down  the  rule  that  an  incorporated  company  has  only 
such  powers  as  have  been  conferred  upon  it.  But  the  demurrer  hav- 
ing been  filed,  the  question  was  whether  it  was  to  be  allowed  or  over- 
ruled. The  Vice-Chancellor  had  allowed  the  demurrer,  and  the  Lord 
Chancellor,  though  he  was  of  opinion  that  the  corporation  had  no 
right  to  do  what  the  bill  alleged  them  to  have  done,  considered  that 
there  was  no  allegation  of  private  right  which  entitled  the  plaintiffs 
to  maintain  the  suit. 

But  in  that  case  there  was,  in  effect,  the  same  allegation  of  private 
injury  as  in  the  present,  because  I find  that  the  bill  alleged  that  it 
was  not  within  the  powers  of  the  corporation  to  furnish  the  water  for 
the  supply  of  Stockport  and  other  towns,  and  that  the  just  rights  of 
the  plaintiffs  would  be  seriously  prejudiced  and  injured. 

I am  of  opinion  that  the  allegation  in  the  14th  paragraph  of  the 
bill,  that  “ great  loss  will  be  sustained  by  the  plaintiffs  if  the  said 
illegal  acts  of  the  corporation  are  permitted  to  continue,”  is  not  such 
an  allegation  of  a private  injury  as  this  court  will  allow  as  the  founda- 
tion for  a bill.  I am  unable  to  see  that  this  case  can  be  distinguished 
from  Stockbridge  District  Waterworks  Company  v.  Corporation  of 
Manchester .8  I must,  therefore,  allow  the  demurrer. 


HOPKINS  v.  GREAT  NORTHERN  RAILWAY. 

In  the  Court  of  Appeals,  1877. 

[ Reported  2 Q.  B.  D.  224. 4] 

[Plaintiffs  were  owners  in  fee  of  a certain  ancient  and  exclusive 
ferry  over  the  River  Nene.  Defendants  constructed  a bridge  and 
footway  across  the  River  Nene  for  their  railway  distant  from  the 

1 L.  R.  4 Ch.  71 ; 6 Eq.  282.  2 9 Jur.  (n.  s.)  266. 

8 9 Jur.  (n.  s.)  267.  4 This  case  is  abridged.  — Ed. 


SECT.  I.] 


EAST  TENNESSEE  CO.  V.  ANDERSON  CO. 


7 


landing  places  of  the  ferry  about  half  a mile.  Traffic  over  the  ferry 
so  fell  off  after  the  operation  of  the  railroad  began  that  it  was  ulti- 
mately given  up.  Plaintiffs  now  bring  action  under  the  Eailway 
Clauses  Act  for  damages.] 

Mellish,  L.  J.  It  can  hardly  be  necessary  to  enumerate  the  dif- 
ferent classes  of  persons  who  had  a legal  interest  in  the  old  highways 
and  who  have  suffered  loss  from  the  diversion  of  traffic  from  those 
highways  to  railways  ; proprietors  of  canals,  turnpike  trustees,  holders 
of  turnpike  bonds,  trustees  of  river  navigations,  and  holders  of  bonds 
secured  on  their  tolls,  have  all  suffered  great  losses  from  the  diversion 
of  traffic  to  railways  and  have  received  no  compensation.  No  doubt 
their  rights  have  not  been  infringed,  though  their  property  has  been 
affected. 

Judgment  reversed , and  entered  for  the  defendants. 


EAST  TENNESSEE  TELEPHONE  CO.  v.  ANDERSON 
COUNTY  TELEPHONE  CO. 

In  the  Court  of  Appeals  of  Kentucky,  1900. 

[Reported,  57  Southwestern  Reporter , 457.] 

Petition  for  an  injunction. 

Hazelrigg,  J.  The  ordinance  adopted  by  the  town  of  Lawrence- 
burg,  granting  the  franchise  to  appellant  to  establish  and  operate  a 
telephone  system  in  that  town,  was  passed  by  the  city  council  on  the 
day  of  its  introduction,  and  did  not  lie  over  five  days,  as  required  by 
section  3636,  Ky.  St.  We  regard  this  provision  of  the  statutes  as  a 
highly  important  one,  and  as  mandatory.  Whatever  rights  — exclu- 
sive or  otherwise  — the  appellant  may  have  had,  if  possessed  of  proper 
municipal  authority,  to  prevent  its  competitor  (the  appellee)  from 
erecting  a rival  telephone  plant,  it  certainly  cannot  prevent  appellee 
from  so  doing  when  acting  without  such  authority.  The  chancellor 
therefore  properly  dismissed  the  appellant’s  petition.  The  other 
questions  raised  on  the  appeal  need  not  be  considered. 

Judgment  affirmed. 


8 


RAILWAY  CO.  V.  TELEGRAPH  ASSOCIATION.  [CHAP.  I. 


RAILWAY  CO.  v.  TELEGRAPH  ASSOCIATION. 

In  the  Supreme  Court  of  Ohio,  1891. 

[Reported  48  Oh.  St.  390.1] 

[Action  by  the  defendant  in  error,  a telephone  company,  against  the 
plaintiff  in  error,  an  electric  street  railway.  The  complaint  was  that 
the  operation  of  the  street  railway  by  the  single  trolley  system  with 
return  by  a ground  circuit  interfered  with  the  operation  of  the  tele- 
phone system  by  a single  wire  with  return  by  a ground  circuit. 
The  court  below  rendered  judgment  in  favor  of  the  Telegraph  Associa- 
tion against  the  Railway  Company.  Appeal.]  ' 

Dickman,  J.  . . . The  demand  made  by  the  Telegraph  Association 
is,  not  that  the  Railway  Company  shall  so  modify  its  existing  elec- 
trical apparatus  as  not  to  interfere  with  the  telephone  service,  but 
shall  forever  abandon  the  use  of  an  essential  part  of  its  electro-motive 
system,  or  be  perpetually  enjoined.  In  other  words,  the  Association 
claims  the  exclusive  use  of  the  grounded  circuit,  inasmuch  as  the 
mechanism  of  the  telephone  is  so  complex,  and  the  electric  currents 
employed  so  delicate  and  sensitive,  that  they  cannot  be  used  without 
disturbance  from  the  heavier  currents  employed  by  neighboring  elec- 
trical enterprises  that  operate  with  the  grounded  circuit.  We  find  no 
foundation  for  such  an  exclusive  franchise  or  right.  When  the  Tele- 
graph Association  began  its  operation  under  the  telephone  system, 
neither  the  statute  authorizing  it  to  erect  and  maintain  poles,  wires, 
and  other  necessary  fixtures,  nor  the  ordinance  under  which  it  ob- 
tained the  power  to  extend  its  lines  in  the  streets,  gave  an  exclusive 
right  either  to  use  the  earth  for  a return  circuit,  or  a complete  metallic 
circuit  formed  by  double  wires.  The  legislature  did  not  grant  the 
right  by  general  enactment,  nor  was  the  municipal  corporation  em- 
powered by  the  legislature  to  give  the  Telegraph  Association  the 
exclusive  right  to  make  use  of  its  streets  so  as  to  create  a monopoly. 
In  State  v.  Cincinnati  Gas  Light  and  Coke  Co .,  18  Ohio  St.  262,  it 
was  held  that  a municipal  corporation  cannot,  without  clear  legislative 
authority,  grant  an  exclusive  right  to  the  use  of  the  streets  for  certain 
purposes  to  an  individual  or  corporation.  To  enable  it  to  grant  such 
an  exclusive  right  by  ordinance  in  the  nature  of  a contract,  the  power 
must  be  shown  to  have  been  expressly  granted,  or  to  be  so  far  neces- 
sary to  the  proper  execution  of  the  powers  which  are  expressly  granted 
as  to  make  its  existence  free  from  doubt. 

In  the  year  1838,  Professor  Steinheil  made  the  important  discovery 
of  the  practicability  of  using  the  earth  as  one  half,  or  the  returning 
section  of  an  electric  circuit.  Professor  Morse  claimed  to  have  made 
the  discovery  about  the  same  time,  but  he  failed  to  obtain  a patent 
therefor.  It  was  the  discovery  of  an  elementary  principle  of  science,  of 
i This  case  is  abridged.  — Ed. 


SECT.  I.] 


AVERILL  V.  SOUTHERN  RY.  CO. 


9 


a truth  in  physics.  Eor  forty  years  before  the  telephone  was  dis- 
covered, the  use  of  the  earth  as  a conducting  medium  in  the  formation 
of  an  electric  circuit  has  been  the  common  property  of  every  electrical 
enterprise. 

Judgment  accordingly. 


AVERILL  v.  SOUTHERN  RY.  CO.  et  al. 

In  the  Circuit  Court  of  the  United  States,  1896. 

[Reported  75  Federal  Reporter , 736.] 

[Bill  filed  by  a receiver  of  the  Port  Royal  Ry.,  asking  the  aid  of 
the  court  in  protecting  the  property  against  a rate  war  inaugurated  by 
the  Southern  Ry.  A cut  of  35%  had  been  made  with  notice  that  if 
this  was  met  a further  cut  of  80%  would  be  made  in  the  rates.  It 
was  alleged  that  its  ultimate  object  in  this  was  to  annihilate  com- 
petition by  the  destruction  of  its  competitors.] 

Simonton,  Circuit  Judge.  The  destructive  results  of  a rate  war 
waged  between  two  great  systems  of  railroads  are  recognized  and 
deprecated  by  men  of  the  greatest  ability  who  have  considered  the 
subject.  They  impair  and  destroy  the  usefulness  of  the  railroads 
themselves,  and  their  ability  to  serve  the  public  with  certainty,  effi- 
ciency, and  safety.  The  business  interests  of  the  community  which 
move  the  crops  and  bring  supplies  to  the  consumer  require  that  rates 
be  stable.  Every  precaution  has  been  taken  by  state  legislatures  and 
by  the  congress  to  keep  them  just  and  reasonable,  — just  and  reason- 
able for  the  public  and  for  the  carriers.  A few  favored  points  and  a 
few  persons  may  for  a short  time  receive  temporary  advantage.  But 
the  result  of  such  a war  is  the  destruction  of  values,  the  disturbance 
and  injury  of  all  business  interests,  the  demoralization  and  confusion 
of  rates,  and  great  public  and  private  loss.  As  Judge  Cooley  has  said, 
the  prevention  of  these  rate  wars  and  the  disastrous  consequences 
resulting  from  them  is  the  problem  of  the  age.  Whether  the  powers 
of  courts  of  equity,  state  as  well  as  federal,  are  elastic  enough  to 
grapple  with  the  evil ; whether  the  primary  trust  (the  public  good)  on 
which  railroads  hold  their  property  is  one  which  can  be  enforced  in 
the  courts ; whether  the  federal  courts  are  able  to  meet  and  to  defeat 
measures  which  obstruct  and  tend  to  destroy  interstate  commerce,  — 
these  are  questions  which  sooner  or  later  must  be  heard  and  deter- 
mined. But,  to  give  effect  to  such  hearing  and  determination,  the 
cause  in  which  they  are  heard  and  determined  must  have  in  it  all 
parties  necessary  to  make  the  determination  practical  to  reach  the  end 
desired.  Courts  do  not  discuss  abstract  questions  or  determine  them 
en  thesis. 

Free  Competition.  — Examples  of  this  established  law  appear  throughout  this 
chapter.  — Ed. 


10 


CORPORATION  OF  WEAVERS  V.  BROWN.  [CHAP.  I. 


B.  Unfree  Competition. 

SIR  GEORGE  EERMOR  v.  BROOKE. 

In  the  Queen’s  Bench,  1590. 

[. Reported  Cro.  Eliz.  203.] 

Action  upon  the  case  for  erecting  a bakehouse  in  Tossiter.  And 
declares,  that  whereas  time  out  of  mind,  &c.,  there  had  been  a manor 
called  Tossiter  in  the  same  county  ; and  for  the  same  time,  there  had 
been  a town  of  Tossiter ; and  that  all  the  land  within  the  said  town 
of  Tossiter  had  been  holden  of  the  said  manor,  of  which  he  is  lord ; 
and  that  he  and  all  his  ancestors,  and  all  those  whose  estate,  &c.  had 
used  to  have  a bakehouse,  and  a baker  there,  to  bake  white  bread 
and  horse  bread  for  all  the  inhabitants  there,  and  strangers  passen- 
gers ; and  that  none  by  the  said  time,  &c.  had  used  to  have  a bake- 
house there,  but  by  their  appointment ; yet  the  defendant  had  erected 
a bakehouse  there,  ad  nocumentum  suum.  The  defendant  taketh 
all  by  protestation,  except  that  he  confessed  that  there  is  such  a 
town ; and  pleaded  that  at  the  time  when  he  erected  his  bakehouse, 
that  there  were  three  bakers  there,  and  that  he  was  an  apprentice  to 
the  trade,  and  that  he  set  up  the  bakehouse  for  the  benefit  of  all  per- 
sons, as  it  was  lawful  for  him  to  do.  And  upon  this  plea  the  plain- 
tiff demurred ; and  it  was  argued  by  Francis  Morgan , for  the  plaintiff, 
and  Buckley,  for  the  defendant.  And  it  was  adjudged  for  the  plain- 
tiff ; for  the  custom  is  between  the  lord  and  his  tenants,  which  by 
indenture  may  have  a good  and  lawful  beginning  ; and  peradventure 
their  lands  were  given  to  them  upon  this  condition  ; and  it  is  reason- 
able that  the  lord  maintaining  a bakehouse,  that  for  this  charge  they 
should  have  reasonable  recompence.  And  the  plaintiff  had  judg- 
ment. 


CORPORATION  OF  WEAVERS  v.  BROWN. 

In  the  Queen’s  Bench,  1601. 

[Reported  Cro.  Eliz.  803.] 

Action  upon  the  case ; supposing,  that  the  plaintiffs,  from  time 
whereof,  &c.,  where  a corporation  in  London,  &c.,  paying  for  it  twenty 
shillings  and  eightpence  to  the  queen  per  annum,  &c.,  and  that  the 
custom  there  is,  that  none  ought  to  intermeddle  with  their  guild,  nor 
with  their  art  within  London  or  Southwark,  but  those  of  the  guild ; 


SECT.  I.] 


TRIPP  V.  FRANK. 


11 


and  that  the  defendant,  being  none  of  their  guild,  had  bought  forty 
pounds  worth  of  silk  of  one  R.  to  be  woven,  and  had  weaved  it,  &c. 
The  defendant  pleaded  not  guilty ; and  a special  verdict  found  these 
customs,  &c.,  and  that  the  defendant,  being  a stranger,  had  received 
of  R.  forty  pounds  worth  of  silk  to  be  woven,  and  had  carried  it  to 
Hackney,  and  there  had  woven  it,  and  had  brought  it  back  to  London, 
and  received  his  salary,  &c.  Et  si,  &c. 

And  hereupon  all  the  court  resolved,  that  it  was  not  any  offence ; 
for  although  it  were  a good  custom,  as  they  all  allow  it  was,  being 
used  time,  &c.,  yet  this  contracting  for  it  in  London,  and  working  of 
it  in  the  country,  is  not  intermeddling  with  their  trade  in  London  ; 
no  more  than  if  a taylor  should  buy  cloth,  or  receive  any  other  thing 
in  London,  and  make  a garment  thereof  in  the  country  ; and  although 
it  be  a contracting  in  London,  yet  it  is  no  intermeddling  with  the 
trade.  Wherefore  it  was  adjudged  for  the  defendant. 


TRIPP  v.  FRANK. 

In  the  Kings  Bench,  1792. 

[ Reported  4 T.  R.  666. *] 

This  was  an  action  on  the  case  ; wherein  the  plaintiff  declared  that 
he  was  possessed  of  South  Ferry  over  the  Humber,  and  that  the  de- 
fendant wrongfully  carried  persons  and  cattle  from  Kingston  upon 
Hull  to  Barton,  and  other  parts  of  the  coast,  whereby  the  plaintiff 
was  injured  in  his  right  to  his  ferry,  and  lost  his  tolls.  There  was  an 
exception  stated  with  respect  to  the  inhabitants  of  Barton,  strangers 
who  do  not  stay  longer  than  flood-tide,  and  market-people  from  the 
different  parts  of  the  Lincolnshire  coast  passing  and  repassing  on 
market  and  fair  days  in  market-boats.  At  the  trial  before  Buller,  J., 
at  the  last  assizes  for  York,  it  appeared  that  the  plaintiff  was  lessee  of 
the  corporation  of  Kingston  upon  Hull ; and  he  proved  a prescription 
in  them  to  an  exclusive  ferry  between  that  place  and  Barton,  on  the 
opposite  coast  of  Lincolnshire,  with  the  exceptions  before  stated. 
And  it  appeared  that  the  defendant,  who  was  the  owner  of  a market- 
boat  at  Barrow,  had  carried  over  persons  at  different  times  than  on 
market-days  from  Kingston  upon  Hull  to  Barrow,  to  which  place  they 
were  going,  and  which  lies  two  miles  lower  down  the  Humber  than 
Barton,  upon  the  same  coast.  It  was  shown  that  there  was  a daily 
ferry  between  Kingston  and  Barton,  but  none  to  any  other  part  of  the 
Lincolnshire  coast.  A verdict  was  taken  for  the  plaintiff  of  Is., 
with  liberty  for  the  defendant  to  enter  a nonsuit  in  case  the  court 
should  be  of  opinion  that  the  plaintiff  was  not  entitled  to  recover 

1 Only  the  opinion  of  Lord  Kenyon,  C.  J.,  is  given  ; the  other  justices  concurred.  — Ed. 


12  BOSTON  AND  LOWELL  R.  R.  V.  SALEM  AND  LOWELL  R.  R.  [CHAP.  I. 

under  these  circumstances.  A rule  nisi  having  been  granted  for  that 
purpose. 

Lord  Kenyon,  C.  J.  — It  seems  to  me  that  the  evidence  does  not 
support  this  action.  If  certain  persons  wishing  to  go  to  Barton  had 
applied  to  the  defendant,  and  he  had  carried  them  a little  distance 
above  or  below  the  ferry,  it  would  have  been  a fraud  on  the  plaintiff’s 
right,  and  would  be  the  ground  of  an  action.  But  here  these  persons 
were  substantially,  and  not  colorably  merely,  carried  over  to  a dif- 
ferent place ; and  it  is  absurd  to  say  that  no  person  shall  be  permitted 
to  go  to  any  other  place  on  the  Humber  than  that  to  which  the  plain- 
tiff chooses  to  carry  them.  It  is  now  admitted  that  the  ferryman  can- 
not be  compelled  to  carry  passengers  to  any  other  place  than  Barton ; 
then  his  right  must  be  commensurate  with  his  duty. 

Rule  discharged . 


BOSTON  & LOWELL  R.  R.  v.  SALEM  & LOWELL  R.  R. 

In  the  Supreme  Court  of  Massachusetts,  1854. 

[Reported  2 Gray , l.1] 

[Bill  in  equity  by  the  Boston  & Lowell  R.  R.  against  the  Salem 
& Lowell  R.  R.,  the  Lowell  & Lawrence  R.  R.,  and  the  Boston  & 
Maine  R.  R.  The  bill  alleged  that  by  express  provision  in  its  charter 
the  Boston  & Lowell  R.  R.  had  the  exclusive  right  for  thirty  years  to 
a railroad  between  Boston  & Lowell.  The  bill  then  alleged  that  by  a 
junction  between  the  Lowell  & Lawrence  R.  R.  with  the  Salem  & 
Lowell  R.  R.,  and  by  an  intersection  of  the  Salem  & Lowell  R.  R. 
with  the  Boston  & Maine  R.  R.  at  Wilmington,  a line  of  railroad 
communication  nearly  parallel  with  the  plaintiff  road  was  created  by 
the  defendant  roads  between  Lowell  and  Boston,  which  line  was  only 
about  one  mile  longer  and  never  more  than  three  miles  distant.  The 
bill  next  alleged  that  the  defendants  were  running  through  trains 
between  Boston  and  Lowell.  Prayer  for  an  injunction.  Demurrer.] 
Shaw,  C.  J.  . . . As  the  result  of  the  whole  case,  the  court  are  of 
opinion  that  the  Boston  and  Lowell  Railroad  Corporation  acquired 
by  their  charter  and  act  of  incorporation  a right,  at  their  own  charge 
and  expense,  but  for  the  public  accommodation  and  use,  to  locate  and 
construct  a railroad  from  the  city  of  Boston  to  Lowell,  for  the  trans- 
portation and  conveyance  of  persons  and  property  between  those 
places  by  railroad  cars,  and  to  levy  and  receive,  for  their  own  benefit 
and  reimbursement,  certain  tolls,  for  the  carriage  of  persons  and  pro- 
perty ; and  that,  as  a part  of  their  franchise,  privilege,  and  right,  and 
the  better  to  secure  to  them  a just  and  reasonable  compensation  and 

1 This  case  is  abridged.  — Ed. 


SECT.  I.]  BOSTON  AND  LOWELL  R.  R.  V.  SALEM  AND  LOWELL  R.  R.  13 


reimbursement,  by  the  tolls  so  granted,  the  Commonwealth  did,  by  the 
said  act  of  incorporation,  grant  to  and  stipulate  with  the  said  corpora- 
tion, that  no  other  railroad,  within  the  time  therein  limited,  and  not 
yet  elapsed,  should  be  authorized  to  be  made,  leading  from  Boston, 
Charlestown,  or  Cambridge  (Charlestown  then  embracing  the  terri- 
tory now  composing  the  town  of  Somerville),  to  any  place  within  five 
miles  of  the  northern  termination  of  said  railroad  at  Lowell.  With- 
out such  authority  of  the  legislature,  we  think  that  no  such  railroad 
within  the  limits  prescribed  could  be  lawfully  made  by  other  persons 
or  corporations  ; and  therefore  this  grant  and  stipulation,  to  a certain 
extent  exclusive,  was  a part,  and  a valuable  part,  of  the  plaintiffs’ 
franchise ; and  that  this  grant  and  stipulation  it  was  competent  for 
the  legislature,  in  behalf  of  the  public,  to  make ; and  that  the  same 
was  a valid  grant  and  contract. 

We  are  also  of  opinion  that  the  legislature  have  not,  since  the 
granting  of  said  charter,  by  right  of  eminent  domain,  taken,  or  mani- 
fested any  intention  to  take,  any  part  of  the  right  and  franchise  of 
the  plaintiffs  for  public  use,  and  that  no  act  or  charter  has  been 
granted  to  the  three  defendant  corporations,  either  or  all  of  them,  to 
take  or  use  any  part  of  the  right  and  franchise  of  the  plaintiffs  ; and 
if  in  any  manner  the  acts  of  the  defendants,  under  color  of  their  acts 
of  incorporation,  do  infringe  upon  the  rights  of  the  plaintiffs,  such 
infringement  is  not  warranted  by  either  or  all  of  the  same  acts,  it  is 
unlawful,  and  constitutes  a disturbance  and  nuisance  to  the  plaintiffs, 
for  which  they  are  entitled  to  a remedy.  We  are  also  of  opinion  that 
the  several  defendant  corporations,  having  been  incorporated  and 
chartered  to  establish  railroads  between  several  termini,  according  to 
their  respective  acts  of  incorporation,  have  no  right,  by  the  use  and 
combination  of  several  sections  of  their  respective  railroads,  to  estab- 
lish a continuous  and  uninterrupted  line  of  transportation  by  railroad, 
of  persons  and  property,  between  Lowell  and  Boston ; and  that  the 
actual  establishment  of  such  a continuous  line  of  transportation  by 
railroad  is  substantially  making  a railroad,  other  than  that  authorized 
to  be  made  by  the  plaintiffs,  to  their  injury,  and  contrary  to  the 
rights  conferred  on  them  by  their  charter. 


Demurrer  overruled . 


14 


THE  BINGHAMTON  BRIDGE. 


[CHAP.  L 


THE  BINGHAMTON  BRIDGE. 
lOHENANGO  BRIDGE  CO.  v.  BINGHAMTON  BRIDGE  CO.] 

1865.  3 Wallace  U.  S.  51. 1 

Error  to  the  New  York  Court  of  Appeals. 

Bill  in  equity  by  Chenango  Bridge  Co.  to  enjoin  Binghamton  Bridge 
Co.  The  plaintiff  company  was  chartered  by  Section  4 of  the  Act  of 
1808,  “ for  the  purpose  of  erecting  and  maintaining  a toll-bridge  across 
the  Chenango  River,  at  or  near  Chenango  Point.”  The  corporation 
was  “ to  have  perpetual  succession,  under  all  the  provisions,  regula- 
tions, restrictions,  clauses  and  provisions  of  the  before-mentioned  Sus- 
quehanna Bridge  Company,”  (referred  to  in  Section  3 of  the  same  Act 
of  1808.)  The  latter  company  was  incorporated  by  Section  38  of  the 
Act  of  1805,  which  gave  the  Susquehanna  Bridge  Co.  all  the  “ powers, 
rights,  privileges,  immunities,  and  advantages,”  contained  in  the  incor- 
poration of  the  Delaware  Bridge  Co.  by  Section  31  of  the  same  Act  of 
1805.  Said  Section  31  enacted:  “ It  shall  not  be  lawful  for  any  per- 
son or  persons  to  erect  any  bridge,  or  establish  any  ferry  across  the  said 
west  and  east  branches  of  Delaware  River,  within  two  miles  either 
above  or  below  the  bridges  to  be  erected  and  maintained  in  pursuance 
of  this  act.”  Soon  after  the  passage  of  the  Act  of  1808,  the  plaintiff 
company  built  a toll-bridge  across  the  Chenango  River,  at  Chenango 
Point.  In  1855,  the  legislature  granted  a charter  to  the  Binghamton 
Bridge  Co.,  purporting  to  authorize  the  building  of  a bridge  in  close 
proximity  to  that  of  the  plaintiffs.  The  latter  company  built  a bridge 
a few  rods  above  the  old  one.  The  old  company  filed  a bill  in  the 
Supreme  Court  of  New  York  to  enjoin  the  new  company.  The  plain- 
tiffs contended  that  the  exclusive  rights  given  by  Section  31  of  the 
Act  of  1805  to  the  Delaware  Bridge  Co.  were  imported  by  Section  38 
of  that  Act  into  the  charter  of  the  Susquehanna  Co.  ; that  these  again, 
thus  imported,  were  translated  into  Section  3 of  the  Act  of  1808  ; and 
that  these  last  were  carried  finally  into  Section  4 of  the  latter  Act ; thus 
making  a contract  by  the  State  with  the  Chenango  Bridge  Co.,  that  no 
bridge  should  ever  be  built  over  the  Chenango  River  within  two  miles 
of  their  bridge,  either  above  or  below  it. 

The  answer  denied  the  contract  thus  set  up. 

The  Supreme  Court  of  New  York  dismissed  the  bill ; and  this  decree 
was  affirmed  by  the  Court  of  Appeals. 

Mr.  D.  S.  Dickenson , for  Binghamton  Bridge  Co. 


1 Statement  abridged.  Arguments,  and  parts  of  opinions,  omitted.  — En. 


SECT.  I.] 


THE  BINGHAMTON  BKIDGE. 


15 


Mr.  Mygatt , contra . 

Mr.  Justice  Davis  delivered  the  opinion  of  the  Court.1 

The  Constitution  of  the  United  States  declares  that  no  State  shall 
pass  an}r  law  impairing  the  obligation  of  contracts  ; and  the  25th  sec- 
tion of  the  Judiciary  Act  provides,  that  the  final  judgment  or  decree  of 
the  highest  court  of  a State,  in  which  a decision  in  a suit  can  be  had, 
may  be  examined  and  reviewed  in  this  court,  if  there  was  drawn  in 
question  in  the  suit  the  validity  of  a statute  of  the  State,  on  the  ground 
of  its  being  repugnant  to  the  Constitution  of  the  United  States,  and 
the  decision  was  in  favor  of  its  validity. 

The  plaintiffs  in  error  brought  a suit  in  equity  in  the  Supreme  Court 
in  New  York,  alleging  that  they  were  created  a corporation  by  the 
legislature  of  that  State,  on  the  first  of  April,  1808,  to  erect  and  main- 
tain a bridge  across  the  Chenango  River,  at  Binghamton,  with  perpetual 
succession,  the  right  to  take  tolls,  and  a covenant  that  no  other  bridge 
should  be  built  within  a distance  of  two  miles  either  way  from  their 
bridge ; which  was  a grant  in  the  nature  of  a contract  that  can- 
not be  impaired.  The  complaint  of  the  bill  is,  that  notwithstanding 
the  Chenango  Bridge  Company  have  faithfully  kept  their  contract  with 
the  State,  and  maintained  for  a period  of  nearly  fifty  years  a safe  and 
suitable  bridge  for  the  accommodation  of  the  public,  the  legislature  of 
New  York,  on  the  fifth  of  April,  1855,  in  plain  violation  of  the  con- 
tract of  the  State  with  them,  authorized  the  defendants  to  build  a bridge 
across  the  Chenango  River  within  the  prescribed  limits,  and  that  the 
bridge  is  built  and  open  for  travel. 

The  bill  seeks  to  obtain  a perpetual  injunction  against  the  Bingham- 
ton Bridge  Company,  from  using  or  allowing  to  be  used  the  bridge  thus 
built,  on  the  sole  ground  that  the  statute  of  the  State,  which  authorizes 
it,  is  repugnant  to  that  provision  of  the  Constitution  of  the  United 
States  which  says  that  no  State  shall  pass  any  law  impairing  the  obli- 
gation of  contracts.  Such  proceedings  were  had  in  the  inferior  courts 
of  New  York,  that  the  case  finally  reached  and  was  heard  in  the  Court 
of  Appeals,  which  is  the  highest  court  of  law  or  equity  of  the  State  in 
which  a decision  of  the  suit  could  be  had.  And  that  court  held  that 
the  act,  by  virtue  of  which  the  Binghamton  bridge  was  built,  was  a 
valid  act,  and  rendered  a final  decree  dismissing  the  bill.  Everything, 
therefore,  concurs  to  bring  into  exercise  the  appellate  power  of  this 
court  over  cases  decided  in  a State  court,  and  to  support  the  writ  of 
error,  which  seeks  to  re-examine  and  correct  the  final  judgment  of  the 
Court  of  Appeals  in  New  York. 

The  questions  presented  by  this  record  are  of  importance,  and  have 
received  deliberate  consideration. 

It  is  said  that  the  revising  power  of  this  court  over  State  adjudica- 
tions is  viewed  with  jealousy.  If  so,  we  say,  in  the  words  of  Chief 
Justice  Marshall,  “ that  the  course  of  the  judicial  department  is  marked 


1 Nelson,  J.,  not  sitting,  being  indisposed. 


16 


THE  BINGHAMTON  BRIDGE. 


[CHAP.  L 


out  by  law.  As  this  court  has  never  grasped  at  ungranted  jurisdiction* 
so  it  never  will,  we  trust,  shrink  from  that  which  is  conferred  upon  it.” 
The  constitutional  right  of  one  legislature  to  grant  corporate  privileges 
and  franchises,  so  as  to  bind  and  conclude  a succeeding  one,  has  been 
denied.  We  have  supposed,  if  anything  was  settled  by  an  unbroken 
course  of  decisions  in  the  Federal  and  State  courts,  it  was,  that  an  act 
of  incorporation  was  a contract  between  the  State  and  the  stockholders. 
All  courts  at  this  da}7  are  estopped  from  questioning  the  doctrine.  The 
security  of  property  rests  upon  it,  and  every  successful  enterprise  is 
undertaken,  in  the  unshaken  belief  that  it  will  never  be  forsaken. 

A departure  from  it  noio  would  involve  dangers  to  society  that  can- 
not be  foreseen,  would  shock  the  sense  of  justice  of  the  county,  un- 
hinge its  business  interests,  and  weaken,  if  not  destroy,  that  respect 
which  has  always  been  felt  for  the  judicial  department  of  the  Govern- 
ment. An  attempt  even  to  reaffirm  it,  could  only  tend  to  lessen  its 
force  and  obligation.  It  received  its  ablest  exposition  in  the  case  of 
Dartmouth  College  v.  Woodward, 1 which  case  has  ever  since  been 
considered  a landmark  by  the  profession,  and  no  court  has  since  dis- 
regarded the  doctrine,  that  the  charters  of  private  corporations  are 
contracts,  protected  from  invasion  by  the  Constitution  of  the  United 
States.  And  it  has  since  so  often  received  the  solemn  sanction  of  this 
court,  that  it  would  unnecessarily  lengthen  this  opinion  to  refer  to  the 
cases,  or  even  enumerate  them. 

The  principle  is  supported  by  reason  as  well  as  authority.  It  was 
well  remarked  by  the  Chief  Justice,  in  the  Dartmouth  College  case, 
“ that  the  objects  for  which  a corporation  is  created  are  universally 
such  as  the  Government  wishes  to  promote.  They  are  deemed  bene- 
ficial to  the  county*  and  this  benefit  constitutes  the  consideration,  and 
in  most  cases  the  sole  consideration  for  the  grant.”  The  purposes  to 
be  attained  are  generally  beyond  the  ability  of  individual  enterprise, 
and  can  only  be  accomplished  through  the  aid  of  associated  wealth. 
This  will  not  be  risked  unless  privileges  are  given  and  securities  fur- 
nished in  an  act  of  incorporation.  The  wants  of  the  public  are  often 
so  imperative,  that  a duty  is  imposed  on  Government  to  provide  for 
them ; and  as  experience  has  proved  that  a State  should  not  directly 
attempt  to  do  this,  it  is  necessary  to  confer  on  others  the  faculty  of 
doing  what  the  sovereign  power  is  unwilling  to  undertake.  The  legis- 
lature, therefore,  says  to  public-spirited  citizens  : “ If  you  will  embark, 
with  your  time,  money,  and  skill,  in  an  enterprise  which  will  accommo- 
date the  public  necessities,  we  will  grant  to  you,  for  a limited  period, 
or  in  perpetuity,  privileges  that  will  justify  the  expenditure  of  your 
money,  and  the  employment  of  your  time  and  skill.”  Such  a grant  is 
a contract,  with  mutual  considerations,  and  justice  and  good  policy  alike 
require  that  the  protection  of  the  law  should  be  assured  to  it. 

It  is  argued,  as  a reason  why  courts  should  not  be  rigid  in  enforc- 


1 4 Wheaton,  418. 


SECT.  I.] 


THE  BINGHAMTON  BRIDGE. 


17 


ing  the  contracts  made  by  States,  that  legislative  bodies  are  often 
overreached  by  designing  men,  and  dispose  of  franchises  with  great 
recklessness. 

If  the  knowledge  that  a contract  made  by  a State  with  individuals  is 
equally  protected  from  invasion  as  a contract  made  between  natural 
persons,  does  not  awaken  watchfulness  and  care  on  the  part  of  law- 
makers, it  is  difficult  to  perceive  what  would.  The  corrective  to  im- 
provident legislation  is  not  in  the  courts,  but  is  to  be  found  elsewhere. 

A great  deal  of  the  argument  at  the  bar  was  devoted  to  the  consider- 
ation of  the  proper  rule  of  construction  to  be  adopted  in  the  interpreta- 
tion of  legislative  contracts.  In  this  there  is  no  difficulty.  All  contracts 
are  to  be  construed  to  accomplish  the  intention  of  the  parties ; and  in 
determining  their  different  provisions,  a liberal  and  fair  construction 
will  be  given  to  the  words,  either  singty  or  in  connection  with  the 
subject-matter.  It  is  not  the  duty  of  a court,  by  legal  subtlety,  to 
overthrow  a contract,  but  rather  to  uphold  it  and  give  it  effect ; and  no 
strained  or  artificial  rule  of  construction  is  to  be  applied  to  any  part  of 
it.  If  there  is  no  ambiguit3r,  and  the  meaning  of  the  parties  can  be 
clearly  ascertained,  effect  is  to  be  given  to  the  instrument  used,  whether 
it  is  a legislative  grant  or  not.  In  the  case  of  the  Charles  River 
bridge,1  the  rules  of  construction  known  to  the  English  common  law 
w’ere  adopted  and  applied  in  the  interpretation  of  legislative  grants,  and 
the  principle  was  recognized,  that  charters  are  to  be  construed  most 
favorably  to  the  State,  and  that  in  grants  by  the  public  nothing  passes 
by  implication.  This  court  has  repeatedly  since  reasserted  the  same 
doctrine ; and  the  decisions  in  the  several  States  are  nearly  all  the 
same  wa3r.  The  principle  is  this  : that  all  rights  which  are  asserted 
against  the  State  must  be  clearty  defined,  and  not  raised  b3T  inference 
or  presumption  ; and  if  the  charter  is  silent  about  a power,  it  does  not 
exist.  If,  on  a fair  reading  of  the  instrument,  reasonable  doubts  arise 
as  to  the  proper  interpretation  to  be  given  to  it,  those  doubts  are  to  be 
solved  in  favor  of  the  State  ; and  where  it  is  susceptible  of  two  mean- 
ings, the  one  restricting  and  the  other  extending  the  powers  of  the 
corporation,  that  construction  is  to  be  adopted  which  works  the  least 
harm  to  the  State.  But  if  there  is  no  ambiguity  in  the  charter,  and 
the  powers  conferred  are  plainty  marked,  and  their  limits  can  be  readily 
ascertained,  then  it  is  the  duty  of  the  court  to  sustain  and  uphold  it, 
and  to  carry  out  the  true  meaning  and  intention  of  the  parties  to  it. 
Any  other  rule  of  construction  would  defeat  all  legislative  grants,  and 
overthrow  all  other  contracts.  What,  then,  are  the  rights  of  the  parties 
to  this  controvers3T  ? 

[After  considering  the  various  N.  Y.  Acts  in  reference  to  Bridge 
Companies,  and  adopting  substantial^  the  construction  contended  for 
b3T  plaintiffs,  the  opinion  proceeds  as  follows :] 

The  legislature,  therefore,  contracted  with  this  company,  if  they 


1 11  Peters,  544. 


18 


THE  BINGHAMTON  BRIDGE. 


[CHAP.  I. 


would  build  and  maintain  a safe  and  suitable  bridge  across  the  Chen- 
ango River  at  Chenango  Point,  for  the  accommodation  of  the  public, 
they  should  have,  in  consideration  for  it,  a perpetual  charter,  the  right 
to  take  certain  specified  tolls,  and  that  it  should  not  be  lawful  for  an}' 
person  or  persons  to  erect  any  bridge,  or  establish  any  ferry,  within  a 
distance  of  two  miles,  on  the  Chenango  River,  either  above  or  below 
their  bridge. 

Has  the  legislature  of  1855  broken  the  contract,  which  the  legislatures 
of  1805  and  1808  made  with  the  plaintiffs? 

The  foregoing  discussion  affords  an  easy  answer  to  this  question. 
The  legislature  has  the  power  to  license  ferries  and  bridges,  and  so  to 
regulate  them,  that  no  rival  ferries  or  bridges  can  be  established  within 
certain  fixed  distances.  No  individual  without  a license  can  build  a 
bridge  or  establish  a ferry  for  general  travel,  for  “it  is  a well-settled 
principle  of  common  law  that  no  man  may  set  up  a ferry  for  all  passen- 
gers, without  prescription  time  out  of  mind,  or  a charter  from  the  king. 
He  may  make  a ferry  for  his  own  use,  or  the  use  of  his  family,  but  not 
for  the  common  use  of  all  the  king’s  subjects  passing  that  way,  because 
it  doth  in  consequence  tend  to  a common  charge,  and  is  become  a thing 
of  public  interest  and  use  ; and  ever}7  ferry  ought  to  be  under  a public 
•regulation.”  As  there  was  no  necessity  of  laying  a restraint  on  un- 
authorized persons,  it  is  clear  that  such  a restraint  was  not  within  the 
meaning  of  the  legislature.  The  restraint  was  on  the  legislature  itself. 
The  plain  reading  of  the  provision,  “ that  it  shall  not  be  lawful  for  any 
person  or  persons  to  erect  a bridge  within  a distance  of  two  miles,”  is, 
that  the  legislature  will  not  make  it  lawful  by  licensing  any  person,  or 
association  of  persons,  to  do  it.  And  the  obligation  includes  a free 
bridge  as  well  as  a toll  bridge,  for  the  security  would  be  worthless  to 
the  corporation  if  the  right  by  implication  was  reserved,  to  authorize 
the  erection  of  a bridge  which  should  be  free  to  the  public.  The  Bing- 
hamton Bridge  Company  was  chartered  to  construct  a bridge  for  gen- 
eral road  travel,  like  the  Chenango  bridge,  and  near  to  it,  and  within 
the  prohibited  distance.  This  was  a plain  violation  of  the  contract 
which  the  legislature  made  with  the  Chenango  Bridge  Company,  and  as 
such  a contract  is  within  the  protection  of  the  Constitution  of  the 
United  States,  it  follows  that  the  charter  of  the  Binghamton  Bridge 
Company  is  null  and  void. 

Decree  of  the  Court  of  Appeals  of  New  York  reversed,  and  a man- 
date ordered  to  issue,  with  directions  to  enter  a judgment  for  the  plain- 
tiff in  error,  the  Chenango  Bridge  Company,  in  conformity  with  this 
opinion. 

[Chase,  C.  J.,  delivered  a dissenting  opinion.] 

Chase,  C.  J.,  Field,  J.,  and  Grier,  J.,  dissented. 


SECT.  I.] 


PARROTT  V.  CITY  OF  LAWRENCE. 


19 


PARROTT  v.  CITY  OF  LAWRENCE  et  als. 

1872.  2 Dillon  U.  S.  Circuit  Court  Reports,  332.1 

Motion  to  dissolve  temporary  injunction  restraining  the  defendants, 
the  Messrs.  Wilson,  from  operating  the  ferry  hereinafter  described. 
Plaintiff  is  a citizen  of  Ohio,  and  a stockholder  in  the  Lawrence  Bridge 
Co.  In  his  bill  in  equity,  he  alleges  that  the  maintenance  of  the  ferry 
infringes  upon  the  rights  of  the  Bridge  Co. ; and,  to  show  his  right  to 
maintain  the  bill,  alleges  that  the  Bridge  Co.  and  its  officers  have 
refused  to  proceed  in  the  State  courts  to  obtain  redress. 

Feb.  15,  1857,  the  Legislative  Assembly  of  the  Territory  of  Kansas 
incorporated  the  Lawrence  Bridge  Co.  ; granting  the  exclusive  right 
and  privilege  of  building  and  maintaining  a bridge  across  the  Kansas 
River,  at  the  city  of  Lawrence  for  a period  of  twenty-one  years ; with 
power  to  establish  and  collect  tolls. 

Prior  to  said  incorporation  of  the  Bridge  Co.  the  Legislative  Assem- 
bly had,  in  1855,  granted  to  one  Baldwin  the  exclusive  right  to  estab- 
lish a public  ferry  within  two  miles  of  Lawrence,  for  a term  of  fifteen 
years.  The  answer  of  some  of  the  defendants  alleges  that  Baldwin 
kept  a ferry  in  the  immediate  vicinit}T  of  the  bridge  for  some  time  after 
the  erection  of  the  bridge;  when,  for  reasons  unknown,  he  ceased  to 
operate  the  ferry. 

By  the  laws  of  Kansas,  the  county  commissioners  have  the  power  to 
grant  ferry  licenses.  In  January,  1871,  the  commissioners  licensed 
one  Darling  to  keep  a ferry,  at  Lawrence,  for  one  year.  The  ferry 
was  operated  at  first  by  Darling,  and  afterwards  by  the  Wilsons,  under 
an  arrangement  with  the  city  of  Lawrence,  the  city  having  purchased 
the  feny-boat  of  Darling.  January  6,  1872,  the  commissioners  granted 
to  the  defendant,  Wilson,  the  right  to  keep  and  run  a ferry  on  the  Kan- 
sas River,  at  the  city  of  Lawrence,  for  one  year. 

According  to  the  bill,  answer,  and  affidavits,  it  appears  that  the 
feny-boat,  or,  as  the  bill  styles  it,  the  floating  bridge,  is  operated  in 
this  way : Two  ropes,  or  cables,  are  thrown  across  the  river,  fastened 
on  each  side,  one  of  which  is  an  endless  chain.  A rope  is  fastened  to 
the  upper  side  of  the  boat,  or  “ floating  bridge,”  and  this  rope  glides 
upon  the  upper  cable  by  means  of  a pulley  attached  to  the  other  end 
of  the  rope,  said  pulley  passing  from  side  to  side  of  the  river  with  the 
boat,  the  motive  power  moving  the  boat  back  and  forth  across  the 
stream  being  a stationarj'  steam  engine  located  on  the  north  bank  of 
the  river.  The  boat  itself  is  an  ordinary  flat-bottomed  boat. 

Thacher  dt  Banks , and  N.  T.  Stephens,  for  the  complainant. 

Wilson  Shannon , for  the  Messrs.  Wilson  and  the  city  of  Lawrence. 

Dillon,  Circuit  Judge.  The  grant  to  the  bridge  company  by  its 


1 Statement  abridged.  — Ed. 


20 


PARROTT  V.  CITY  OF  LAWRENCE. 


[CHAP.  I. 


charter  is  u the  exclusive  right  and  privilege  of  building  and  maintain- 
ing a bridge  across  the  Kansas  river  at  the  city  of  Lawrence,”  and  “ to 
establish  and  collect  tolls  for  crossing  said  bridge If  this  right  has 
not  been  invaded,  the  complainant  is  not  entitled  to  an  injunction 
against  the  running  of  the  ferry.  I say  the  ferry , for,  in  my  judgment, 
it  is  clear  that  the  means  used  to  cross  the  river  by  the  defendant,  Wil- 
son, — viz.  a flat-bottomed  boat,  connected  with  cables  spanning  the 
stream,  and  moved  or  propelled  back  and  forth  across  it  by  power  sup- 
plied by  a stationary  engine  on  the  bank  — is  a ferry,  as  distinguished 
from  a bridge,  both  under  the  legislation  of  the  State  and  according  to 
the  usual  meaning  of  the  word. 

The  passage  over  streams  is  generally  effected  in  one  of  two  ways, 
viz.  : by  bridges,  which,  as  commonly  constructed  for  the  use  of  trav- 
ellers and  teams,  are  immovable  structures  or  extensions  of  the  high- 
ways over  and  across  the  water ; and  by  boats,  which  are  movable 
and  propelled  by  steam-power,  liorse-power,  the  action  of  the  current, 
or  similar  agencies.  When  the  passage  is  by  the  latter  mode  it  is 
called  ferrying , which  implies  a boat  that  moves  back  and  forth  across 
the  stream,  from  bank  to  bank.  The  legislation  of  Kansas  everywhere 
recognizes  this  distinction  between  bridges  and  ferries.  In  the  Stat- 
utes of  1855  there  are  provisions  for  building  bridges  (chap.  18),  and 
also  for  regulating  ferries  (chap.  71).  At  the  first  session  of  the 
legislature,  in  1855,  there  were  a great  man}7  special  acts,  some  author- 
izing certain  persons  to  build  toll-bridges,  and  others  to  establish  and 
maintain  ferries.  Among  these  numerous  acts  was  one  giving  to  John 
Baldwin  the  exclusive  right  to  keep  a public  ferry  across  the  Kansas 
river  at  the  town  of  Lawrence  for  the  period  of  fifteen  years.  Two 
years  afterwards  the  legislature  incorporated  the  Lawrence  Bridge 
Company,  giving  it  the  exclusive  right  to  build  and  maintain  a bridge 
across  the  river  at  the  same  place.  Did  this  invade  the  franchise  which 
had  been  granted  to  Baldwin?  Clearly  not,  for  the  two  grants  are 
different ; the  one  was  to  keep  a ferry  and  collect  tolls  or  ferriage  for 
crossing  the  stream  by  this  mode  — the  other  was  to  erect  and  maintain 
a bridge,  &c.,  “ to  collect  tolls  for  crossing  the  same.”  So  that  during 
the  period  for  which  Baldwin’s  ferry  charter  was  to  run,  there  were  two 
modes  of  crossing  the  river  at  Lawrence  expressly  authorized,  — the 
one  by  means  of  Baldwin’s  ferry,  the  other  by  means  of  the  bridge  of 
the  Lawrence  Bridge  Company. 

The  contract  of  the  legislature  with  the  bridge  company  must  be 
protected  from  subsequent  invasion.  But  what  was  that  contract?  It 
was  simply  an  exclusive  right  to  build  a bridge  and  to  “ collect  tolls 
for  crossing  the  same.”  It  is  argued  that  the  contract  with  the  bridge 
company  was  that  the  travel  of  a certain  district,  to-wit : those  passing 
the  river  at  Lawrence,  should  pass  over  this  bridge  and  pay  tolls  there- 
for. But  it  is  clear  that  such  was  not  the  contract : 1st,  because  it  is 
not  so  expressed,  or  fairly  to  be  implied  from  the  language  used ; and, 
2d,  because  the  existence  of  the  Baldwin  ferry  charter,  which  must  be 


SECT.  I.] 


PARROTT  V.  CITY  OF  LAWRENCE. 


21 


presumed  to  have  been  in  the  mind  of  the  legislature  when  it  passed 
the  bridge  charter,  and  which,  bj7  its  terms,  would  continue  in  force 
many  }Tears  after  the  period  fixed  for  the  completion  of  the  bridge, 
shows  that  the  legislature  did  not  intend  to  make  a contract  with  the 
bridge  company  to  the  effect  that  all  persons  and  property  crossing  at 
Lawrence  should  pass  over  the  bridge. 

When  we  consider  that  legislative  grants  creating  monopolies,  while 
they  are  not  to  be  cut  down  by  hostile  or  strained  constructions,  are 
nevertheless  not  to  be  enlarged  be}Tond  the  fair  meaning  of  the  lan- 
guage used  ( Binghamton  Bridge  Case , 3 Wall.  74),  this  conclusion 
seems,  to  my  mind,  so  clear  as  not  to  admit  of  fair  doubt. 

It  has  been  settled  by  adjudication  that  the  exclusive  right  to  a toll 
bridge  is  not  infringed  by  the  erection  of  an  ordinary  railroad  bridge 
within  the  limits  over  which  the  exclusive  right  extended  ( Mohawk 
Bridge  Company  v.  Railroad  Company , 6 Paige,  564 ; Bridge  Pro- 
prietors v.  Hoboken  Co.  1 Wall.  116,  150,  and  cases  cited)  ; and  the 
reasoning  upon  which  this  conclusion  rests  shows  that  where  the  charter 
of  the  bridge  company  is  silent  upon  the  subject,  its  exclusive  right 
would  not  be  invaded  by  the  establishment,  under  legislative  authority, 
of  a public  ferry,  although  this  would  have  the  incidental  effect  to 
injure  the  value  of  the  franchise  of  the  bridge  company.  That  this  is 
the  opinion  of  the  presiding  justice  of  this  court  is  plain  from  an 
expression  to  that  effect,  by  way  of  argument,  in  his  opinion  in  the 
Hoboken  Bridge  Case  (1  Wall.  116, 149).  In  that  case  the  legislature 
of  New  Jersejy  in  1790,  authorized  the  making  of  a contract  with  cer- 
tain persons  for  the  building  of  a bridge  over  the  Hackensack  river, 
and  by  the  same  statute  enacted  that  it  should  not  be  lawful  for  any 
person  to  erect  “ an}7  other  bridge  over  or  across  the  said  river  for 
ninety-nine  years ; ” and  it  was  held  that  the  railroad  bridge  subse- 
quently authorized,  which  was  so  constructed  as  that  persons  or  prop- 
erty could  not  pass  over  it  except  in  railway  cars,  did  not  impair  the 
legal  rights  of  the  bridge  proprietors.  Mr.  Justice  Miller,  in  dis- 
cussing the  question  as  to  what  was  the  meaning  of  the  Act  of  1790 
and  the  contract  with  the  persons  who  built  the  bridge,  says  : “ There 
is  no  doubt  that  it  was  the  intention  of  those  who  framed  those  two 
documents  to  confer  on  the  persons  now  represented  by  the  plaintiffs 
some  exclusive  privileges  for  ninety-nine  years.  If  we  can  arrive  at 
a clear  and  precise  idea  what  that  privilege  is,  we  shall  perhaps  be 
enabled  to  decide  whether  the  erection  proposed  by  the  defendants  will 
infringe  it.  In  the  first  place,  it  is  not  an  exclusive  right  to  transport 
passengers  and  property  over  the  Hackensack  and  Passaic  rivers,  for 
there  is  no  prohibition  of  ferries,  nor  is  it  pretended  that  they  would 
violate  the  contract.”  (1  Wall.  149.) 

In  conclusion  I may  remark,  that  I have  considered  the  very  ingen- 
ious argument  made  by  the  complainant’s  counsel  to  show  that  the  mode 
adopted  by  the  defendants  for  transporting  persons  and  property  across 
the  river  is  not  a ferry,  but  a flying  bridge,  or  a floating  bridge,  and 


22 


IMHAEUSER  V.  BUERK. 


[CHAP.  I. 


hence  it  is  a violation  of  the  franchise  of  the  bridge  company.  But 
the  single  boat,  which  is  made  to  cross  the  river  by  steam-power,  is 
not,  in  my  judgment,  a bridge  of  any  kind. 

Injunction  dissolved. 


IMHAEUSER  v.  BUERK. 

In  the  Supreme  Court  of  the  United  States,  1879. 

[Reported  102  U.  S.  647.] 

Suit  by  the  holder  of  letters  patent  for  a watchman’s  time  detector, 
alleging  infringement  by  the  defendant  in  manufacturing  another 
watchman’s  time  detector. 

Mr.  Justice  Clifford  delivered  the  opinion  of  the  court. 

Equivalents  may  be  claimed  by  a patentee  of  an  invention  consist- 
ing of  a combination  of  old  elements  or  ingredients,  as  well  as  of  any 
other  valid  patented  improvement,  provided  the  arrangement  of  the 
parts  composing  the  invention  is  new,  and  will  produce  a new  and 
useful  result. 

Pressure  in  a machine  may  be  produced  by  a spring  or  by  a weight ; 
and  where  that  is  so,  the  one  is  a mechanical  equivalent  of  the  other. 
Cases  arise  also  where  a rod  and  an  endless  chain  will  produce  the 
same  effect  in  a machine ; and  where  that  is  so,  the  constructor  in 
operating  under  the  patent  may  substitute  the  one  for  the  other,  and 
still  claim  the  protection  which  the  patent  confers.  Exactly  the  same 
function  in  certain  cases  may  be  accomplished  by  a lever  or  by  a screw  ; 
and  where  that  is  so,  the  substitution  of  the  one  for  the  other  cannot 
be  regarded  as  invention. 

Patentees  of  an  invention  consisting  merely  of  a combination  of  old 
ingredients  are  entitled  to  equivalents,  by  which  is  meant  that  the 
patent  in  respect  to  each  of  the  respective  ingredients  comprising  the 
invention  covers  every  other  ingredient  which,  in  the  same  arrange- 
ment of  the  parts,  will  perform  the  same  function,  if  it  was  well  known 
as  a proper  substitute  for  the  one  described  in  the  specification  at  the 
date  of  the  patent.  Hence  it  follows  that  a party  who  merely  substi- 
tutes another  old  ingredient  for  one  of  the  ingredients  of  the  patented 
combination  is  an  infringer  if  the  substitute  performs  the  same  func- 
tion as  the  ingredient  for  which  it  is  so  substituted,  and  it  appears 
that  it  was  well  known  at  the  date  of  the  patent  that  it  was  adaptable 
to  that  use. 


SECT.  I.]  EDWARD  THOMPSON  CO.  V.  AMERICAN  LAW  BOOK  CO. 


23 


EDWAED  THOMPSON  CO.  v AMEEICAN  LAW  BOOK  CO. 

In  the  Circuit  Court  of  the  United  States,  1903. 

[Reported  122  Federal  Reporter , 922.] 

Application  for  injunction  by  the  publishers  of  the  American  and 
English  Encyclopaedia  of  Law  against  the  publishers  of  the  Cyclo- 
paedia of  Law  and  Procedure,  alleging  infringement. 

Coxe,  Circuit  Judge.  The  only  act  of  the  defendant  which  is  com- 
plained of  is  this  : Lists  of  all  the  cases  bearing  upon  a given  subject, 
including  the  cases  found  in  complainant’s  books,  were  put  in  the 
hands  of  the  editor  chosen  to  develop  that  subject.  The  list  of  com- 
plainant’s cases  contained  authorities  not  found  in  the  digests.  The 
original  reports  of  these  cases  were  examined  by  the  editor,  and,  if  the 
cases  were  found  applicable,  they  were  cited  by  him  in  support  of  his 
article;  if  not,  they  were  rejected.  There  is  no  pretense  that  a word 
of  the  complainant’s  text  has  been  copied  ; in  fact  the  defendant’s 
editors  were  not  permitted  to  open  the  complainant’s  books.  The  list 
of  cases  furnished  the  editor  was  not  copied  in  the  defendant’s  work 
and  the  only  use  made  of  the  list  was  as  a guide  to  the  volumes  where 
the  cases  were  reported. 

Briefly  stated,  then,  the  question  is  this : Is  a copyrighted  law  book 
infringed  by  a subsequent  work  on  the  same  subject  where  the  only 
accusation  against  the  second  author  is  that  he  collected  all  available 
citations,  including  those  found  in  the  copyrighted  work,  and,  after 
examining  them  in  text-books  and  reports,  used  those  which  he  con- 
sidered applicable  to  support  his  own  original  text  ? We  are  of  the 
opinion  that  this  question  must  be  answered  in  the  negative.  The 
doctrine  contended  for  by  the  complainant  extends  the  law  of  copy- 
right beyond  its  present  bounds,  and  if  pushed  to  its  logical  conclu- 
sion will  inflict  a far  greater  injury  upon  literature  than  it  can  ever 
expect  to  prevent.  If  it  be  held  that  an  author  cannot  consult  the 
authorities  collected  by  his  predecessors,  the  law  of  copyright,  enacted 
to  promote  the  progress  of  science  and  useful  arts,  will  retard  that 
progress.  It  will  be  found  upon  examining  the  reported  cases  that 
there  has  been  a finding  of  non-infringement  unless  it  appears  that  the 
whole  or  a part  of  the  copyrighted  work  has  been  copied,  either  in  hcec 
verba  or  by  colorable  variation. 

Unfree  Competition.  — The  design  of  this  chapter  does  not  permit  further  discussion 
of  this  matter.  — Ed. 


24 


EVANS  V.  HARLOW. 


[CHAP.  X. 


SECTION  II.  — METHODS  OF  COMPETITION. 

A.  Fair  Competition. 

EVANS  v.  HAELOW. 

In  the  Queen’s  Bench,  1844. 

[ Reported  5 Q.  B.  624.1] 

Case  for  a libel.  The  declaration  stated  that  the  defendant,  Ha^ 
low,  published  of  and  concerning  the  plaintiff,  Evans,  the  following 
false,  scandalous,  malicious,  and  defamatory  libel ; that  is  to  say  : — 

“ This  is  to  caution  parties  employing  steam  power  from  a person  ” 
(meaning  the  plaintiff)  “ offering  what  he  ” (meaning  the  plaintiff) 
“ calls  Self  acting  tallow  syphons  or  lubricators  ” (meaning  the  said 
design,  and  meaning  the  said  goods  and  articles  which  the  plaintiff 
had  so  sold  and  had  on  sale  as  aforesaid),  “ stating  that  he  ” (mean- 
ing the  plaintiff)  “ is  the  sole  inventor,  manufacturer,  and  patentee, 
thereby  monopolizing  high  prices  at  the  expense  of  the  public. 
Bobert  Harlow”  (meaning  himself  the  defendant),  “brass-founder, 
Stockport,  takes  this  opportunity  of  saying  that  such  a patent  does 
not  exist,  and  that  he  ” (meaning  the  defendant)  “ has  to  offer  an 
improved  lubricator,  which  dispenses  with  the  necessity  of  using 
more  than  one  to  a steam  engine,  thereby  constituting  a saving  of 
fifty  per  cent,  over  every  other  kind  yet  offered  to  the  public.  Those 
who  have  already  adopted  the  lubricators  ” (meaning  the  said  design 
of  the  plaintiff,  and  meaning  the  goods  and  articles  which  the  plain- 
tiff has  so  sold  and  had  on  sale  as  aforesaid),  “ against  which  B.  TIP 
(meaning  himself  the  defendant)  “would  caution,  will  find  that  the 
tallow  is  wasted  instead  of  being  effectually  employed  as  professed.” 
By  means  of  which  premises  the  plaintiff  was  greatly  injured  in 
his  credit,  reputation,  and  circumstances,  and  was  prevented  from 
selling  divers  articles  made  according  to  the  said  design,  and  also 
divers  of  the  said  other  articles  and  goods,  which  he  might  and  other- 
wise would  have  sold,  and  was  thereby  prevented  from  acquiring 
divers  great  gains  which  he  might  and  otherwise  would  have  acquired, 
and  was  and  is  greatly  injured  in  the  way  of  his  said  trade  and  busi- 
ness and  otherwise.  To  the  plaintiff’s  damage  of,  &c. 

General  demurrer,  and  joinder.  The  ground  stated  in  the  margin 
of  the  demurrer  was,  “ that  there  is  nothing  in  the  alleged  libel  which 
is  actionable.” 

Lord  Denman,  C.  J.  I am  of  opinion  that  the  statement  com- 
plained of  does  not  amount  to  a libel.  It  contains  no  real  imputa- 
1 Only  the  opinion  of  Lord  Denman,  C.  J.,  is  given;  the  other  justices  concurred.  — Ed, 


SECT.  II.]  WHITE  v.  MELLIN.  # 25 

tion  upon  the  plaintiff  of  fraud  or  misrepresentation.  There  are 
indeed  words  intimating  that  the  plaintiff  stated  himself  to  be  the 
sole  inventor  and  patentee  of  the  lubricators,  whereas  no  such  patent 
existed  ; but  it  does  not  appear  by  the  record  that  the  plaintiff  had  or 
claimed  to  have  any  patent  in  respect  of  these.  The  gist  of  the  com- 
plaint is  the  defendant’s  telling  the  world  that  the  lubricators  sold 
by  the  plaintiff  were  not  good  for  their  purpose,  but  wasted  the 
tallow.  A tradesman  offering  goods  for  sale  exposes  himself  to  obser- 
vations of  this  kind ; and  it  is  not  by  averring  them  to  be  “ false, 
scandalous,  malicious,  and  defamatory  ” that  the  plaintiff  can  found  a 
charge  of  libel  upon  them.  To  decide  so  would  open  a very  wide 
door  to  litigation,  and  might  expose  every  man  who  said  his  goods 
were  better  than  another’s  to  the  risk  of  an  action.  There  is,  in  this 
case,  a caution  given  by  the  defendant  against  the  plaintiff  ; but  it  is 
not  against  fraud  in  him  ; it  is  simply  on  account  of  his  selling  defec- 
tive goods.  Any  one  selling  the  same  articles  would  have  as  much 
right  to  complain  as  he  has.  The  imputation  is  only  on  the  goods, 
and  is  not  ground  for  an  action. 


WHITE  v.  MELLIN. 

In  the  House  of  Lords,  1895. 

[. Reported  1895,  A.  C.  154.1] 

The  respondent  was  the  proprietor  of  Mellin’s  food  for  infants, 
which  he  sold  in  bottles  enclosed  in  wrappers  bearing  the  words 
“ Mellin’s  Infants’  Food.”  The  respondent  was  in  the  habit  of  supply- 
ing the  appellant  with  these  bottles,  which  the  appellant  sold  again 
to  the  public  after  affixing  on  the  respondent’s  wrapper  a label  as  fol- 
lows : — 

“Notice. 

“The  public  are  recommended  to  try  Dr.  Vance’s  prepared  food  for 
infants  and  invalids,  it  being  far  more  nutritious  and  healthful  than 
any  other  preparation  yet  offered.  Sold  in  barrels,  each  containing 
1 lb.  net  weight,  at  7 \d.  each,  or  in  7 lb.  packets  3s.  9 d.  each.  Local 
agent,  Timothy  White,  chemist,  Portsmouth.” 

The  appellant  was  the  proprietor  of  Vance’s  food.  Discovering  this 
practice,  the  respondent  brought  an  action  against  the  appellant, 
claiming  an  injunction  to  restrain  him,  and  damages. 

At  the  trial  before  Homer,  J.,  the  plaintiff  proved  the  above  facts, 
and  called  two  analysts  and  a physician,  the  result  of  whose  evidence 
is  stated  in  Lord  Herschell’s  judgment.  Briefly,  they  testified  that  in 
their  opinion  Mellin’s  food  was  suitable  for  infants,  especially  up  to 
the  age  of  six  months,  and  persons  who  could  not  digest  starchy  mat- 

l This  case  is  much  abridged.  — Ed. 


26 


WHITE  V.  MELLIN. 


[CHAP.  I. 

ters,  and  that  Vance’s  food  was  unsuitable  for  such  beings,  nay  per- 
nicious and  dangerous  for  very  young  infants.  At  the  close  of  the 
plaintiff’s  case  Romer,  J.,  being  of  opinion  that  the  label  was  merely 
the  puff  of  a rival  trader  and  that  no  cause  of  action  was  disclosed, 
dismissed  the  action  with  costs.  The  Court  of  Appeal  (Lindley, 
Lopes,  and  Kay,  L.JJ.)  being  of  opinion  that  the  cause  ought  to  have 
been  heard  out,  discharged  that  judgment  and  ordered  a new  trial.1 

Lord  Herschell,  L.  C.  (after  stating  the  facts).  . . . Mr.  Moulton 
sought  to  distinguish  the  present  case  by  saying  that  all  that  Lord  Den- 
man referred  to  was  one  tradesman  saying  that  his  goods  were  better 
than  his  rival’s.  That,  he  said,  is  a matter  of  opinion,  but  whether 
they  are  more  healthful  and  more  nutritious  is  a question  of  fact.  My 
Lords,  I do  not  think  it  is  possible  to  draw  such  a distinction.  The 
allegation  of  a tradesman  that  his  goods  are  better  than  his  neighbor’s 
very  often  involves  only  the  consideration  whether  they  possess  one 
or  two  qualities  superior  to  the  other.  Of  course  “ better”  means 
better  as  regards  the  purpose  for  which  they  are  intended,  and  the 
question  of  better  or  worse  in  many  cases  depends  simply  upon  one 
or  two  or  three  issues  of  fact.  If  an  action  will  not  lie  because  a man 
says  that  his  goods  are  better  than  his  neighbor’s,  it  seems  to  me  im- 
possible to  say  that  it  will  lie  because  he  says  that  they  are  better  in 
this  or  that  or  the  other  respect.  Just  consider  what  a door  would  be 
opened  if  this  were  permitted.  That  this  sort  of  puffing  advertise- 
ment is  in  use  is  notorious ; and  we  see  rival  cures  advertised  for 
particular  ailments.  The  court  would  then  be  bound  to  inquire,  in 
an  action  brought,  whether  this  ointment  or  this  pill  better  cured  the 
disease  which  it  was  alleged  to  cure  — whether  a particular  article 
of  food  was  in  this  respect  or  that  better  than  another.  Indeed,  the 
courts  of  law  would  be  turned  into  a machinery  for  advertising  rival 
productions  by  obtaining  a judicial  determination  which  of  the  two 
was  the  better.  As  I said,  advertisements  and  announcements  of  that 
description  have  been  common  enough  ; but  the  case  of  Evans  v.  Har- 
low 2 was  decided  in  the  year  1844,  somewhat  over  half  a century  ago, 
and  the  fact  that  no  such  action  — unless  it  be  Western  Counties 
Manure  Co.  v.  Lawes  Chemical  Manure  Co.8  — has  ever  been  main- 
tained in  the  courts  of  justice  is  very  strong  indeed  to  show  that  it  is 
not  maintainable.  It  is,  indeed,  unnecessary  to  decide  the  point  in 
order  to  dispose  of  the  present  appeal. 

For  the  reasons  which  I have  given  I have  come  to  the  conclusion 
that  the  judgment  of  the  court  below  cannot  be  sustained,  even 
assuming  the  law  to  be  as  stated  by  the  learned  judges  ; but  inasmuch 
as  the  case  is  one  of  great  importance  and  some  additional  color  would 
be  lent  to  the  idea  that  an  action  of  this  description  was  maintainable 
by  the  observations  in  the  court  below,  I have  thought  it  only  right 
to  express  my  grave  doubts  whether  any  such  action  could  be  main- 
tained even  if  the  facts  brought  the  case  within  the  law  there  laid 
down. 

1 [1894]  3 Ch.  276. 


2 5 Q.  B.  624. 


8 L.  R.  9 Ex.  218. 


AYER  V.  RUSHTON. 


27 


SECT.  II.] 

Upon  the  whole,  therefore,  I think  that  the  judgment  of  Eomer,  J., 
was  right  and  ought  to  be  restored,  and  that  this  appeal  should  be 
allowed,  with  the  usual  result  as  to  costs ; and  I so  move  your  Lord- 
ships. 


AYEE  v.  EUSHTON. 

In  the  Common  Pleas  of  New  York,  1877. 

[. Reported  7 Daly , 9.1] 

Appeal  by  the  defendant  from  a judgment  in  favor  of  the  plain- 
tiffs, granting  a perpetual  injunction  against  manufacturing  a com- 
pound called  “ cherry  pectoral/’  and  using  that  name  upon  bottles, 
labels,  or  wrappers,  and  selling  any  compound  by  that  name,  and 
against  imitating  the  plaintiffs’  trade-mark  “ cherry  pectoral.”  The 
defendants  appealed  upon  the  judgment  roll  including  the  findings  of 
fact  and  law  made  at  special  term. 

Daly,  J.  . . . From  these  findings  it  appears  that  both  preparations 
are  nearly  alike  in  color,  taste,  and  smell,  although  defendant  has  lately 
altered  his  compound  slightly,  in  these  particulars  ; that  they  are  both 
put  up  in  oblong  flat  clear  glass  bottles  ; that  plaintiffs’  bottles  contain 
about  six  ounces  and  defendant’s  about  five  and  a half  ounces ; that 
plaintiffs’  bottles  are  stamped  “ Ayer’s  Cherry  Pectoral,”  and  defend- 
ant’s (I  assume  in  the  absence  of  any  finding  on  that  point)  are  not 
stamped;  that  plaintiffs’  bottles  are  in  a paper  wrapper  of  a deep 
orange  color,  and  defendant’s  bottles  in  a white  paper  wrapper ; that 
plaintiffs’  wrapper  bears  the  printed  words  (the  color  of  the  ink  not 
specified  in  the  finding)  “Ayer’s  Cherry  Pectoral  for  the  various 
affections  of  the  lungs  and  throat,  such  as  Colds,  Coughs,  Croup, 
Asthma,  Influenza,  Hoarseness,  Bronchitis,  and  incipient  consump- 
tion, and  for  the  relief  of  consumptive  patients  in  advanced  stages 
of  the  disease.  Prepared  and  sold  by  J.  C.  Ayer,  Lowell,  Massachu- 
setts. Price  one  dollar ; ” and  defendant’s  wrappers  bear  the  words, 
printed  in  red  ink,  “Cherry  Pectoral,  Eushton,  F.  V.,”  and  upon  an 
inside  wrapper  “ Cherry  Pectoral,”  and  after  some  printed  words  of 
description  and  recommendation  the  words,  “ For  Sale  wholesale  and 
retail  by  Eushton  & Co.,  11  Barclay  Street,  New  York,  formerly  of 
No.  11  Astor  House ; ” that  defendant  advertised  by  posters,  placards, 
and  signs  the  words  “ Cherry  Pectoral,”  for  sale  at  11  Barclay  Street, 
and  placed  signs  in  front  of  his  store  with  the  words  “ Depot  of  the 
Cherry  Pectoral  Company  ” thereon ; that  he  conspicuously  placed  in 
his  store  a placard  with  the  words  “ Ayer’s  Cherry  Pectoral,  one  dol- 
lar. Eushton’s  Cherry  Pectoral,  fifty  cents  ; which  will  you  have  ? ” 
that  he  instructed  his  clerks  to  answer  to  purchasers  who  called  for 
Ayer’s  Cherry  Pectoral  that  his  Cherry  Pectoral  was  not  Ayer’s,  and 
1 This  case  is  somewhat  abridged.  — Ed. 


28 


CHOYNSKI  V.  COHEN. 


[CHAP.  I. 


to  ask  persons  inquiring  for  Cherry  Pectoral  which  they  wanted, 
Rushton’s  or  Ayer’s,  and  to  say  that  Rushton’s  was  much  better ; 
that  bottles  containing  said  preparations  are  almost  uniformly  sold  in 
closed  opaque  paper  wrappers. 

We  have,  then,  the  undisputed  circumstances  that  defendant  has 
been  careful  to  distinguish  his  preparation  from  plaintiffs’  by  a 
marked  difference  in  the  color  of  the  wrappers,  the  lettering  and  the 
arrangement  of  the  words  printed  on  the  wrapper,  and  by  distinctive 
announcements,  the  signs  in  his  store,  and  through  his  clerks.  In 
fact  he  seems  to  have  taken  precautions  to  prevent  the  two  com- 
pounds from  being  confounded  in  the  eyes  of  purchasers ; and  to  pre- 
vent purchasers  being  misled  or  deceived  into  buying  his  medicine 
under  the  impression  that  it  was  plaintiffs’  medicine. 

Judgment  reversed,  and  new  trial  ordered . 


CHOYNSKI  v.  COHEN. 

In  the  Supreme  Court  of  California,  1870. 

[. Reported  39  Cal.  501.] 

Crockett,  J.  The  defendant’s  motion  to  set  aside  the  default 
taken  against  him  for  a failure  to  answer  was  properly  denied. 
The  excuse  given  in  his  affidavit  for  his  omission  is  fully  denied  by 
the  counter  affidavit  of  the  plaintiff. 

The  only  question  which  remains  to  be  considered  is  whether  or 
not  the  complaint  states  a sufficient  cause  of  action  to  support  the 
judgment.  If  the  complaint  exhibits  no  cause  of  action,  even  a judg- 
ment by  default  will  be  reversed  on  appeal.  Able  v.  Marr,  14  Cal.  210. 

The  action  is  to  recover  damages  for  a violation  of  the  plaintiff’s 
trade-mark,  and  to  restrain  the  use  of  it  in  the  future.  The  complaint 
alleges  that  in  1863  the  plaintiff  established  a book,  periodical,  and 
stationery  store  in  San  Francisco,  and  gave  to  his  place  of  business 
the  name  of  “ Antiquarian  Book  Store,”  by  which  name  it  has  ever 
since  been  known ; that  this  name  was  placed  upon  his  sign,  stamped 
upon  all  articles  sold  by  him,  and  used  in  his  correspondence ; that 
he  advertised  by  that  name  in  newspapers,  and  used  it  in  his  business 
transactions  generally.  The  grievance  complained  of  is,  that  the 
defendant  has  set  up  a rival  establishment  under  the  name  of  the 
“Antiquarian  Book  and  Variety  Store.”  It  is  plain  that  the  plaintiff 
could  not  acquire  any  exclusive  right  to  use  as  a trade-mark  the 
terms  “ book  store  ” separated  from  the  word  “ antiquarian.”  Terms 
in  common  use  to  designate  a trade  or  occupation  cannot  be  exclu- 
sively appropriated  by  any  one.  Otherwise,  only  one  person  would 
have  the  right  to  designate  his  place  of  business  a “ book  store,”  “ tin- 
ner’s shop,”  “ drug  store,”  “ hotel,”  etc.  It  must,  therefore,  depend 


CHOYNSKI  V.  COHEN. 


29 


SECT.  II.] 

upon  the  effect  of  the  word  “ antiquarian,”  as  used  in  connection  with 
the  words  “ book  store,”  whether  or  not  the  plaintiff  has  acquired  an 
exclusive  right  to  the  use  of  these  words  as  a trade-mark.  The  word 
“ antiquarian,”  as  applied  to  a book  store,  can  have  no  other  meaning 
or  effect  than  to  indicate  to  the  public  that  the  proprietor  deals  in  a 
certain  class  of  books,  to  wit : ancient  books,  or  books  pertaining  to 
antiquity.  Any  one  reading  the  sign  “ Antiquarian  Book  Store  ” over 
the  door  would  naturally  expect  to  find  there  for  sale  either  ancient 
books,  or  books  treating  on  subjects  connected  with  antiquity. 

In  any  other  sense  the  word  “ antiquarian  ” could  have  no  signifi- 
cance as  applied  to  a book  store.  In  other  words,  it  indicates  only 
that  a certain  class  of  books  are  sold  there.  It  could  not,  by  even  a 
forced  construction,  be  made  to  signify  that  the  plaintiff’s  business 
had  been  long  established,  and  was  of  an  ancient  origin ; for  the  com- 
plaint informs  us  that  the  business  was  established  in  1863,  and  that 
it  had  the  name  of  the  “ Antiquarian  Book  Store  ” from  the  begin- 
ning. It  is  plain  that  the  object  of  the  plaintiff  in  the  use  of  the 
word  “ antiquarian  ” was  simply  to  indicate  that  a particular  class  of 
books  was  sold  there,  precisely  in  the  same  sense  that  the  words 
“ Law  Book  Store,”  or  “ Medical  Book  Store,”  or  “ Divinity  Book 
Store  ” would  indicate  that  law,  medical,  or  religious  works  were  for 
sale.  If  we  are  correct  in  this  interpretation  of  the  words,  it  is 
obvious  the  plaintiff  could  no  more  appropriate  them  as  a trade-mark 
than  could  a dry  goods  dealer  the  words  “ Drench  Silk  Store,”  or  a 
dealer  in  hats  the  words  “ Felt  Hat  Store,”  or  a merchant  the  words 
“Ladies’  Shoe  Store,”  in  which  cases  the  words  employed  would 
simply  notify  the  public  that  a particular  class  of  merchandise,  as 
contradistinguished  from  other  merchandise  of  the  same  general 
description,  was  for  sale  there.  In  all  such  cases,  the  words  employed 
are  but  an  advertisement  that  the  proprietor  deals  in  a certain  class 
of  goods ; and  it  would  be  a somewhat  startling  proposition  to  an- 
nounce that  the  first  shoe  merchant  who  puts  over  his  door  the  words 
“ Ladies’  Shoe  Store  ” acquires  the  exclusive  right  to  use  these  words 
as  a trade-mark.  In* the  case  of  Falkiriburg  et  al.  v.  Lucy,  35  Cal.  52, 
this  court  had  occasion  to  examine,  with  much  care,  the  principles 
which  underlie  this  case ; and  without  repeating  here  the  argument 
to  be  found  in  the  decision  of  that  case,  it  will  suffice  to  say  that 
upon  reason  and  authority,  not  less  than  upon  the  principles  decided 
in  the  case  referred  to,  we  are  satisfied  the  plaintiff  had  no  right  to 
appropriate  the  words  “ Antiquarian  Book  Store  ” as  a trade-mark ; 
and,  consequently,  that  the  complaint  contained  no  cause  of  action. 

Judgment  reversed  and  cause  remanded,  with  an  order  to  the 
District  Court  to  dismiss  the  action. 


30 


PARSONS  V.  GILLESPIE. 


[chap.  I. 


PARSONS  v.  GILLESPIE. 

In  the  House  of  Lords,  1898. 

[ Reported  1898,  A.  C.  239.1] 

The  action  was  brought  by  the  appellants  to  obtain  an  injunction 
to  restrain  the  respondents  from  applying  to  any  preparation  not  be- 
ing of  the  appellants’  manufacture  the  term  “ Flaked  Oatmeal,”  or 
from  selling  as  “ Flaked  Oatmeal  ” any  preparation  not  being  of  the 
appellants’  manufacture,  and  for  an  account  of  profits  or  damages. 

Lord  Hobhouse.  . . . The  plaintiffs  then  must  show  either  that 
the  term  “ Flaked  Oatmeal  ” is  not  part  of  the  common  stock  of  lan- 
guage in  the  sense  that  it  is  not  a term  of  description,  but  is  of  an 
arbitrary  or  fanciful  nature  invented  by  the  plaintiffs  which  the  in- 
ventor may  claim  to  have  appropriated ; or  they  must  show  that  the 
term,  being  originally  a description  of  the  article  itself,  has  come  in 
practice  to  denote  goods  made  by  the  plaintiffs.  To  both  these  points 
the  plaintiffs  have  carefully  addressed  themselves.  They  maintain 
that  the  expression  “ Flaked  Oatmeal”  does  not  properly  describe 
their  goods  or  those  of  the  defendants,  but  is  an  artificial  expression 
fit  for  appropriation  by  any  one  who  has  hit  upon  it. 

Now,  nobody  can  look  at  Exhibit  A without  seeing  that  the  word 
“ Flaked  ” is  a correct  description.  The  oats  have  been  only  partially 
reduced  to  powder,  and  are  presented  in  small  flattened  morsels  like 
flakes  of  snow.  The  term  is  one  in  common  use  for  food  grains  or 
other  vegetable  substances  so  treated  by  rolling  or  crushing,  such  as 
“ flaked  rice,”  “ flaked  barley,”  “ flaked  tapioca,”  “ flaked  cocoa,”  and 
so  forth.  But  then  it  is  said  that  the  article  is  not  “ meal  ” because 
it  is  not  ground  to  powder.  Whether  the  word  “meal”  would  by 
etymology  or  in  the  very  strictest  use  of  language  be  applicable  to  that 
which  has  passed  through  the  mill,  but  is  only  partially  reduced  to 
powder,  is  a point  as  to  which  their  Lordships  think  that  no  nice 
inquiry  need  be  made.  It  is  a natural  and  obvious  term  to  use  for 
oats  so  treated  — one  which  everybody  would  accept  at  once  as  ap- 
propriate enough ; and  probably  everybody  who  breakfasted  off  por- 
ridge made  from  such  a material  would  think  and  say  that  he  was 
eating  oatmeal  porridge. 

Then  it  is  contended  that  the  product  of  the  defendants  is  not  oat- 
meal, and  that  their  adoption  of  an  inappropriate  name  shows  an 
intention  of  trading  on  the  reputation  acquired  by  the  plaintiffs.  It 
seems  to  their  Lordships  that  the  name  as  applied  to  the  defendants’ 
product  is  strictly  appropriate ; for  they  do  reduce  the  oats  to  powder, 
which  is  afterwards  steamed,  rolled,  and  so  flaked.  The  plaintiffs  have 
been  reduced  to  contend  on  this  point  that  because  the  defendants 
take  away  some  5 per  cent,  of  the  finest  powder  the  rest  is  not  oat- 
l This  case  is  abridged.  — Ed. 


SECT.  II.]  PASSAIC  PRINT  WORKS  V.  ELY,  ETC.  DRY  GOODS  CO.  31 

meal ; and  further  that  to  roll  or  flake  oatmeal  is  impossible.  To 
support  these  two  contentions  they  brought  several  witnesses  in  the 
court  below  ; but  the  court  rightly  gave  no  weight  to  the  evidence, 
which  has  been  little  insisted  on  here. 

Then  has  there  been  any  such  secondary  use  of  the  term  as  to 
identify  it  with  the  plaintiffs’  manufacture  ? To  prove  that  there  has 
been,  the  plaintiffs  call  a number  of  grocers  who  say  that  when  cus- 
tomers asked  for  “ Flaked  Oatmeal”  they  supplied  the  plaintiffs’ 
goods.  That  was  a matter  of  course  during  the  five  or  six  years  for 
which  nobody  except  the  plaintiffs  purported  to  sell  goods  under  that 
name.  One  witness,  a miller,  says  in  terms  that  between  1892  and 
the  beginning  of  1896  the  words  “ Flaked  Oatmeal  ” had  got  to  mean 
the  plaintiffs’  manufacture.  That  seems  to  their  Lordships  somewhat 
slender  evidence  to  prove  such  a general  association  of  the  name  of 
the  product  with  the  producer  as  to  entitle  the  plaintiffs  to  say  that 
the  use  of  the  name  by  another  is  an  encroachment  on  their  rights. 

But  supposing  the  evidence  sufficient  on  this  point,  it  falls  far  short 
of  showing  that  the  proceedings  of  the  defendants  are  such  as  to 
cause  confusion  between  their  goods  and  those  of  the  plaintiffs.  There 
is  no  evidence  that  any  buyer  has  got  the  defendants’  goods  when  he 
desired  to  have  those  of  the  plaintiffs ; nor  that  any  seller  has  made 
confusion  between  the  two.  As  for  external  resemblance  of  the  pack- 
ages or  labels,  it  has  been  shown  before  with  reference  to  the  trade- 
mark that  there  is  nothing  of  the  kind  except  in  the  use  of  the  two 
disputed  words.  In  fact,  the  defendants  could  hardly  have  done  more 
to  show  that  the  articles  came  from  different  makers. 

The  result  is  that  in  their  Lordships’  judgment  the  defendants  have 
done  no  more  than  they  had  a right  to  do  in  taking  appropriate  words 
of  ordinary  description  to  indicate  the  article  which  they  make  and 
sell,  and  that  their  action  is  not  calculated  to  pass  off  their  manufac- 
ture as  that  of  the  plaintiffs,  and  is  not  proved  in  point  of  fact  to  have 
done  so.  Their  Lordships  will  humbly  advise  Her  Majesty  that  this 
appeal  should  be  dismissed.  The  appellants  must  pay  the  costs. 


PASSAIC  PRINT  WORKS  v.  ELY  & WALKER  DRY  GOODS 

CO. 

In  the  Circuit  Court  of  Appeals  of  the  United  States,  1900. 

[. Reported  105  Fed.  163.] 

This  case  was  determined  below  on  a demurrer  to  the  plaintiff’s 
petition  which  was  sustained,  and  a final  judgment  was  entered  against 
the  Passaic  Print  Works,  the  plaintiff  below,  it  having  declined  to 
plead  further.  The  plaintiff’s  petition  contained  the  following  allega- 
tions : That  the  plaintiff  was  a corporation  organized  under  the  laws 


32  PASSAIC  PRINT  WORKS  V.  ELY,  ETC.  DRY  GOODS  CO.  [CHAP.  I. 

of  the  State  of  New  Jersey,  and  engaged  in  the  manufacture  of  prints 
or  calicoes  at  Passaic,  in  that  State.  That  prior  to  February  25, 1899, 
it  had  been  engaged  for  more  than  fifteen  years  in  the  manufacture 
of  prints  or  calicoes,  and  by  careful  management  of  its  business  had 
earned  a reputation  of  manufacturing  a high  class  of  such  goods. 
That  it  sold  its  goods,  through  its  selling  agents,  to  jobbers  or  whole- 
sale dealers  throughout  the  United  States,  who  in  turn  sold  the  same 
to  the  retail  trade.  That  the  city  of  St.  Louis,  Mo.,  was  one  of  the 
markets  in  which  its  prints  or  calicoes  were  sold  at  wholesale,  and 
that  it  had  a large  and  prosperous  trade  in  that  city;  that  among 
the  goods  by  it  manufactured  and  sold  were  four  brands  of  calicoes 
known  as  “Trouville  Mourning  Prints,”  “Central  Park  Shirtings,’’ 
“ Elmora  Fancy  Prints,”  and  “ Ramona  Fancy  Prints,”  all  of  which 
were  of  a kind  largely  purchased  by  jobbers  in  the  St.  Louis  market, 
being  well  suited  to  the  retail  trade  tributary  thereto.  That  its  sell- 
ing agents  had  fixed  the  price  for  said  brands  of  calicoes  for  the 
season  of  1899  as  follows : For  the  Trouville  mourning  prints,  3£ 
cents  a yard,  less  a discount  of  5 per  cent,  and  2 per  cent. ; for  the 
Central  Park  shirtings,  3£  cents  a yard,  less  a discount  of  5 per  cent, 
and  2 per  cent.  ; for  the  Elmora  fancy  prints,  4^  cents  per  yard,  less 
a discount  of  10  per  cent,  and  2 per  cent. ; and  for  the  Ramona  fancy 
prints,  4 cents  per  yard,  less  a discount  of  5 per  cent.  That  at  the 
date  aforesaid  the  blank  cloth  from  which  such  calicoes  were  made 
was  selling  at  2^  cents  per  yard,  and  that  the  price  above  specified 
for  the  finished  product  was  its  price  at  Passaic,  N.  J.,  without  the 
addition  of  any  freight.  It  was  further  alleged  that  prior  to  Febru- 
ary 25,  1899,  the  plaintiff  had  received  orders  for  a large  amount  of 
the  several  kinds  of  prints  aforesaid  at  the  prices  above  specified 
from  several  large  wholesale  dealers  doing  business  in  the  city  of  St. 
Louis,  and  “ that  on  or  about  the  25th  day  of  February,  1899,  the  said 
defendants  (to  wit,  the  Ely  & Walker  Dry  Goods  Company  et  aZ.), 
combining  and  conspiring  among  themselves  and  with  others  to  the 
plaintiff  unknown,  and  maliciously  intending  to  injure  the  business  of 
the  said  plaintiff,  and  to  cause  it  great  loss  in  money,  and  to  break  up 
and  ruin  the  plaintiff’s  trade  among  the  jobbers  in  St.  Louis,  mali- 
ciously caused  a circular  in  the  name  of  the  said  defendant  corpora- 
tion to  be  issued  and  sent  out  to  the  retail  trade  tributary  to  St. 
Louis,  which  said  circular  was  in  words  and  figures  following ; that 
is  to  say  : 1 Ely  & Walker  Dry  Goods  Co.  We  beg  to  call  your  atten- 
tion to  the  following  items  at  prices  that  cannot  be  replaced,  and 
request  you  to  order  promptly  if  interested,  to  secure  first  selection 
of  styles.  Prices  for  all  items  subject  to  change  without  notice,  and 
orders  accepted  only  for  stock  on  hand.’  ” Then  followed  a long  list 
of  various  brands  of  cloth,  with  a specification  of  the  prices  at  which 
the  various  brands  would  be  sold,  and  among  them  the  following : 
“ Trouville  mourning  prints,  as  long  as  they  last,  3£ ; Central  Park 
and  Boat  Club  shirting  prints,  as  long  as  they  last,  2£ ; Elmora  and 
Ramona  fancy  prints,  as  long  as  they  last,  3^.”  It  was  next  averred 


SECT.  II.]  PASSAIC  PRINT  WORKS  V.  ELY,  ETC.  DRY  GOODS  CO.  33 

that  the  plaintiff  had  not  sold  to  the  defendant  corporation  or  to 
either  of  the  individual  defendants  any  of  the  aforesaid  prints  or 
calicoes  of  its  manufacture  for  a period  of  about  one  year  prior  to 
February  25,  1899 ; that  it  had  never  sold  to  said  defendants  any 
Elmoras  or  Ramonas ; that,  if  said  defendant  had  any  of  said  last-men- 
tioned prints,  it  had  purchased  them  at  second-hand ; that  as  it  was 
informed  and  believed  the  defendants  had  but  a small  quantity  of 
such  goods  to  sell,  and  for  that  reason  qualified  its  offer  to  sell  by 
inserting  in  its  circular  the  words  “ as  long  as  they  last  ” j and  that 
the  price  named  in  said  circular  for  the  aforesaid  four  brands  of 
prints  of  its  manufacture  was  less  than  the  price  charged  by  the 
plaintiff  for  said  prints,  it  having  universally  charged  for  said  prints 
for  delivery  in  the  spring  of  1899  the  several  prices  therefor  hereto- 
fore specified.  It  was  next  averred  that  the  effect  of  the  aforesaid 
circular  was  to  advertise  to  the  retail  trade  tributary  to  the  city  of 
St.  Louis  that  the  four  brands  of  calicoes  aforesaid  of  the  plaintiff’s 
manufacture  could  be  purchased  at  a less  price  from  the  defendant 
corporation  than  they  could  be  from  other  jobbers  in  the  city  of  St. 
Louis  to  whom  the  plaintiff  had  sold  large  quantities  thereof,  and  to 
cause  said  other  jobbers  to  either  cancel  their  orders,  or  to  compel  the 
plaintiff  to  make  a rebate  on  the  price  of  its  goods  in  order  that  other 
jobbers  might  meet  the  prices  so  specified  in  the  defendant’s  circular, 
and  to  break  up,  injure,  and  destroy  the  sale  and  trade  in  such  prints 
in  the  St.  Louis  market  and  in  the  country  tributary  thereto,  except 
at  greatly  reduced  prices.  It  was  also  alleged,  but  on  information 
and  belief,  that  the  quotations  aforesaid  in  the  defendant’s  circular 
were  made  for  the  purpose  of  injuring  and  destroying  the  plaintiff’s 
trade  in  the  manner  last  stated,  and  that  in  consequence  of  the  issu- 
ance of  said  circular  the  plaintiff  had  lost  profits  on  sales  which  it 
otherwise  might  have  made  to  the  amount  of  $10,000,  and  had  been 
further  damaged  by  having  to  change  the  name  of  its  goods  and  by 
having  their  identity  lost  to  the  amount  of  $20,000,  and  had  also  been 
further  damaged  by  the  malicious  acts  complained  of  to  the  amount 
of  $20,000 ; making  its  total  loss  $50,000,  for  which  sum  it  prayed 
judgment. 

Before  Caldwell,  Sanborn,  and  Thayer,  Circuit  Judges. 

Thayer,  Circuit  Judge,  after  stating  the  case  as  above,  delivered 
the  opinion  of  the  court. 

The  complaint  filed  in  the  lower  court,  the  substance  of  which  has 
been  stated,  shows  by  necessary  intendment  that  when  the  circular 
of  the  defendant  company  was  issued  it  had  in  stock  a limited  quan- 
tity of  the  four  brands  of  calico  of  the  plaintiff’s  manufacture  which 
are  therein  described.  The  circular  stated,  in  substance,  that  the 
defendant  had  such  calicoes  in  stock,  and  the  complaint  did  not  deny 
that  fact,  but  admitted  it  by  averring  that  “ the  defendant  corpora- 
tion had  but  a small  quantity  of  such  goods  to  sell,  and  for  that  reason 
qualified  its  offer  to  sell  by  inserting  in  the  circular  after  the  name 
of  the  goods  the  words,  ( as  long  as  they  last.’”  Moreover,  the  owner 


34  PASSAIC  PRINT  WORKS  V.  ELY,  ETC.  DRY  GOODS  CO.  [CHAP.  L 

of  property,  real  or  personal,  has  an  undoubted  right  to  sell  it  and  to 
offer  it  for  sale  at  whatever  price  he  deems  proper,  although  the  effect 
of  such  offer  may  be  to  depreciate  the  market  value  of  the  commodity 
which  he  thus  offers,  and  incidentally  to  occasion  loss  to  third  parties 
who  have  the  same  kind  of  species  of  property  for  sale.  The  right  to 
offer  property  for  sale,  and  to  fix  the  price  at  which  it  may  be  bought, 
is  incident  to  the  ownership  of  property,  and  the  loss  which  a third 
party  sustains  in  consequence  of  the  exercise  of  that  right  is  damnum 
absque  injuria.  We  are  thus  confronted  with  the  inquiry  whether 
the  motive  which  influenced  the  defendant  company  to  offer  for  sale 
such  calicoes  of  the  plaintiff’s  manufacture  as  they  had  in  stock  at 
the  price  named  in  its  circular,  conceding  such  motive  to  have  been  as 
alleged  in  the  complaint,  changed  the  complexion  of  the  act,  and 
rendered  the  same  unlawful,  when,  but  for  the  motive  of  the  actor,  it 
would  have  been  clearly  lawful.  It  is  common  learning  that  a bad 
motive  — such  as  an  intent  to  hinder,  delay,  and  defraud  creditors,  by 
virtue  of  St.  13  Eliz.  c.  5,  and  possibly  by  the  rules  of  the  common 
law  — will  render  a conveyance  or  transfer  of  property  void  which, 
but  for  the  bad  motive,  would  have  teen  valid.  So,  also,  one  who 
sets  the  machinery  of  the  law  in  motion  without  probable  cause,  and 
for  the  sole  purpose  of  injuring  the  reputation  of  another,  or  subject- 
ing him  to  loss  and  expense,  is  guilty  of  an  unlawful  act  which  would 
have  been  lawful  but  for  the  improper  motive.  And  one  who,  by 
virtue  of  his  situation,  has  a qualified  privilege  to  make  defamatory 
statements  concerniug  another,  may  be  deprived  of  the  benefit  of  that 
privilege  by  proof  that  it  was  not  exercised  in  good  faith,  but  in  pur- 
suance of  a malicious  intent  to  injure  the  person  concerning  whom 
the  defamatory  statement  or  statements  were  made.  Poll.  Torts 
(Webb’s  ed.)  pp.  331-335,  and  cases  there  cited.  There  is  also  some 
authority  for  saying  that  one  who  maliciously  (that  is,  with  intent,  to 
obtain  some  personal  benefit  at  another’s  loss  or  expense)  induces 
another  to  break  his  contract  with  a third  party  thereby  commits  an 
actionable  wrong  if  special  damage  is  disclosed,  although  the  act  done 
would  have  been  lawful  if  the  wrongful  motive  had  been  absent. 
Lumley  v.  Gye,  2 El.  & Bl.  216 ; Bowen  v.  Hall , 6 Q.  B.  Div.  333 ; 
Walker  v.  Cronin , 107  Mass.  555.  And  see  Poll.  Torts  (Webb’s  ed.) 
pp.  668-673.  Aside  from  cases  of  the  latter  kind,  it  is  a general  rule 
that  the  bad  motive  which  inspires  an  act  will  not  change  its  com- 
plexion, and  render  it  unlawful,  if  otherwise  the  act  was  done  in  the 
exercise  of  an  undoubted  right.  Or,  as  has  sometimes  been  said, 
“ when  an  act  done  is,  apart  from  the  feelings  which  prompted  it, 
legal,  the  civil  law  ought  to  take  no  cognizance  of  its  motive.”  The 
question  as  to  how  far  and  under  what  circumstances  a bad  purpose 
will  render  an  act  actionable  which,  considered  by  itself,  and  without 
reference  to  the  purpose  which  prompted  it,  is  lawful,  has  been  so 
much  discussed  since  the  decision  in  Allen  v.  Flood,  [1898]  1 App. 
Cas.  1,  that  it  would  be  profitless  to  indulge  in  further  comment.  It 
has  been  well  observed  that  it  would  be  dangerous  to  the  peace  of 


SECT.  II.]  PASSAIC  PRINT  WORKS  V.  ELY,  ETC.  DRY  GOODS  CO.  35 

society  to  admit  the  doctrine  that  any  lawful  act  can  be  transformed 
prima  facie  into  an  actionable  wrong  by  a simple  allegation  that  the 
act  was  inspired  by  malice  or  ill  will,  or  by  any  improper  motive.  It 
is  wiser,  therefore,  to  exclude  any  inquiry  into  the  motives  of  men 
when  their  actions  are  lawful,  except  in  those  cases  where  it  is  well 
established  that  malice  is  an  essential  ingredient  of  the  cause  of 
action,  or  in  those  cases  where,  the  act  done  being  wrongful,  proof  of 
a bad  motive  will  serve  to  exaggerate  the  damages. 

The  case  at  bar  falls  within  neither  of  the  exceptions  to  the  gen- 
eral rule  above  stated,  — that,  if  an  act  is  done  in  the  exercise  of  an 
undoubted  right,  and  is  lawful,  the  motive  of  the  actor  is  immaterial. 
No  one  can  dispute  the  right  of  the  defendant  company  to  offer  for 
sale  goods  that  it  owned  and  were  in  its  possession,  whether  the 
quantity  was  great  or  small,  for  such  a price  as  it  deemed  proper. 
This  was  the  outward  visible  act  of  which  complaint  is  made,  and, 
being  lawful,  the  law  will  not  hold  it  to  be  otherwise  because  of  a 
secret  purpose  entertained  by  the  defendant  company  to  inflict  loss 
on  the  plaintiff  by  compelling  it  to  reduce  the  cost  of  a certain  kind 
of  its  prints  or  calicoes. 

Nor  is  the  complaint  aided  in  any  respect  by  reference  to  the  law 
of  conspiracy,  since  the  only  object  that  the  defendants  had  in  view 
which  the  law  will  consider  was  the  disposition  or  sale  of  certain 
goods  which  the  defendant  corporation  had  the  right  to  sell;  and 
the  means  employed  to  accomplish  that  end,  namely,  placing  them 
on  the  market  at  a reduced  cost,  were  also  lawful. 

In  the  brief  filed  in  behalf  of  the  plaintiff  in  error  it  is  suggested 
finally  that  the  complaint  may  be  sustained  on  the  ground  that  it 
states  a good  cause  of  action  for  maliciously  causing  certain  persons 
to  break  or  cancel  their  contracts  with  the  plaintiff,  but  we  think 
it  quite  obvious  that  the  complaint  was  not  framed  with  a view  ot 
stating  a cause  of  action  of  that  nature,  and  that  it  is  insufficient  for 
that  purpose.  It  does  not  give  the  name  of  any  person  or  corporation 
with  whom  ithe  plaintiff  had  a contract  for  the  sale  of  its  prints  which 
was  subsequently  broken  m consequence  of  the  wrongful  acts  of  the 
defendant.  Neither  does  it  show  that  it  had  accepted  any  orders  for 
goods  which  the  jobber  was  not  privileged  to  cancel  at  his  pleasure. 
Nor  does  it  allege  any  special  damage  incident  to  the  breach  of  any 
particular  contract.  In  view  of  all  the  allegations  which  the  com- 
plaint contains  it  is  manifest,  we  think,  that  it  was  framed  with  a 
view  of  recovering  on  the  broad  ground  that  the  issuance  of  the  cir- 
cular was  unlawful  and  actionable,  provided  the  motive  of  the  defend- 
ant company  in  issuing  it  was  to  occasion  loss  or  inconvenience  to 
the  plaintiff. 

We  are  of  opinion  that  the  complaint  did  not  state  a cause  of 
action,  as  the  trial  court  held,  and  the  judgment  below  is  therefore 
affirmed. 


86 


WALSH  V.  DWIGHT. 


[CHAP.  I. 


WALSH  v.  DWIGHT. 

In  the  Supreme  Court  of  New  York,  1899. 

[Reported  40  App.  Div.  N.  Y.  513.1] 

Ingraham,  J.  Upon  the  trial  of  this  action  the  complaint  was  dis- 
missed upon  the  ground  that  it  did  not  state  facts  sufficient  to  con- 
stitute a cause  of  action,  and  from  the  judgment  entered  upon  such 
dismissal  the  plaintiffs  appeal.  U pon  this  appeal  the  facts  alleged  in 
the  complaint  must  be  taken  as  established,  and  it  must  be  deter- 
mined whether  upon  such  facts,  as  alleged,  the  plaintiffs  were  entitled 
to  a verdict.  The  complaint  alleges  that  the  plaintiffs,  who  are  doing 
business  in  the  city  of  New  York  as  manufacturers  of  and  dealers  in 
saleratus  and  soda,  which  are  articles  of  common  use  for  the  support 
of  life  and  health,  had  expended  large  sums  of  money  in  advertising 
their  business  throughout  the  State  of  New  York  and  elsewhere;  had 
been  to  great  expense  in  introducing  their  goods  on  the  market ; had, 
prior  to  January  1,  1896,  built  up  a large  and  lucrative  business,  and 
had  prepared  plates  and  wrappers  for  the  various  brands  of  goods 
used  by  the  jobbers  and  general  dealers  in  the  trade  to  whom  the 
plaintiffs  supplied  the  said  goods  ; that  prior  to  January  1,  1896,  the 
defendants  had  been  engaged  in  the  manufacture  and  sale  of  saleratus 
and  soda  and  had  built  up  a large  trade  in  what  was  known  on  the 
market  as  “ Dwight’s  Cow  Brand  Saleratus  and  Soda,”  and  that  the 
said  articles  under  the  said  name  had  come  to  be  well  known  and  in 
great  demand  throughout  the  country,  though  substantially  of  the 
same  grade  and  quality  as  those  sold  by  the  plaintiffs  ; that  the  plain- 
tiffs had,  prior  to  January  1,  1896,  been  supplying  jobbers  and  the 
trade  generally  with  the  said  articles  at  prices  considerably  lower  than 
those  charged  for  the  articles  manufactured  and  sold  by  the  defend- 
ants, and  thereby  had  been  enabled  to  make  large  sales  of  their  com- 
modities ; that  the  defendants,  knowing  this  and  with  intent  to  injure 
the  plaintiffs,  destroy,  restrain,  and  prevent  competition,  and  for  the 
purpose  of  advancing  the  prices  of  the  said  articles,  and  contrary  to 
the  statute  in  such  case  made  and  provided,  did,  shortly  before  and  on 
or  about  the  1st  day  of  January,  1896,  and  at  other  times,  wrongfully 
and  unlawfully  make  and  enter  into  contracts  with  large  numbers  of 
the  jobbers  and  dealers  throughout  fhe  State  of  New  York  and  else- 
where, wherein  and  whereby  these  defendants  undertook  and  agreed 
to  pay  to  the  said  parties  quarterly,  one  half  cent  per  pound  on  all 
purchases  from  said  defendants  of  the  said  Cow  Brand  Saleratus  and 
Soda,  in  consideration  of  the  said  parties  undertaking  and  agreeing 
not  to  sell,  or  to  permit  any  person  connected  with  them,  or  under 
their  control,  to  sell  Dwight’s  Cow  Brand  Saleratus  and  Soda  at  less 
than  the  basis  of  five  and  one  half  cents  per  pound  in  one  pound 
1 This  case  is  somewhat  abridged.  — Ed. 


SECT.  II.] 


WALSH  V.  DWIGHT. 


37 


packages  in  boxes,  or  four  cents  per  pound  in  bulk  in  kegs,  free  on 
board  in  New  York  city;  other  packages  in  proportion;  “ (jobbers 
outside  of  New  York  city  to  add  one-eighth  of  a cent  per  pound  to 
the  invoice  prices  for  freight,  which  price  was  a fictitious  and  exor- 
bitant price  caused  by  extensive  and  extravagant  advertising,  the 
benefit  of  which  accrued  only  to  said  defendants),  and  further  under- 
taking and  agreeing  not  to  sell  any  saleratus  or  soda  in  bulk  or  in 
boxes  under  their  own  private  or  other  brands  at  less  price  than 
Dwight’s  Cow  Brand  ; ” and  that,  by  reason  of  the  said  wrongful  and 
unlawful  contracts  and  combinations  of  the  said  defendants,  restrain- 
ing and  preventing  competition  and  creating  a monopoly  in  the  said 
articles,  the  business  of  these  plaintiffs  was  utterly  destroyed,  and 
they  were  wholly  prevented  from  competing  with  the  defendants  or 
making  any  sales  of  their  goods,  and  were  injured  to  their  damage  in 
the  premises  in  the  sum  of  $50,000. 

It  is  not  alleged  that  the  defendants  had  made  any  contracts  with 
the  customers  of  the  plaintiffs,  or  with  any  others  than  those  who 
were  the  defendants’  regular  customers  or  persons  regularly  dealing 
with  them,  or  that  they  had  induced  any  of  the  plaintiffs’  customers 
to  break  any  existing  contract  with  the  plaintiffs.  The  right  of 
action  appears  to  be  based  solely  upon  the  illegality  of  the  contracts 
made  between  the  defendants  and  their  customers  or  persons  dealing 
with  them  ; and  the  plaintiffs  ask  to  recover  from  the  defendants  the 
damages  which  they  claim  to  have  sustained  because,  by  reason  of 
the  alleged  illegal  contracts  made  between  the  defendants  and  their* 
customers,  the  defendants’  customers  refused  to  purchase  the  plain- 
tiffs’ goods. 

Assuming,  for  the  purpose  of  this  argument,  — a question,  however,, 
which  we  do  not  determine,  — that  a contract  made  by  a firm  engaged 
in  the  manufacture  and  sale  of  an  article  of  commerce  with  those* 
dealing  with  the  firm,  which  is  illegal  or  prohibited  by  law,  would, 
give  a cause  of  action  to  any  third  party  engaged  in  the  same  business* 
having  no  contractual  relation  with  either  of  the  parties  to  the  con- 
tract alleged  to  be  illegal,  the  illegality  of  the  contract  alleged  must  be 
established  before  there  could  be  any  cause  of  action.  There  is,,  how- 
ever, nothing  in  the  contract  alleged  in  the  complaint  to  have  been 
made  by  the  defendants  which  prevents  the  jobbers  and  dealers  from 
purchasing  or  selling  the  goods  of  others  than  the  defendants.,  The 
defendants  simply  offered  to  parties  purchasing  their  goods  to  make  a 
reduction  in  the  price  of  the  goods  sold,  in  consideration  of  the  pur- 
chasers agreeing  not  to  sell  the  goods  at  a less  price  than  that  named* 
and  not  to  sell  the  goods  of  other  manufacturers  at  a less  price  than 
that  at  which  they  agreed  to  sell  the  defendants’  goods.  It  is  difficult, 
to  see  upon  what  ground  it  can  be  claimed  that  such  a contract  is 
illegal.  That  the  defendants  would  have  the  right  to  establish 
agencies  for  the  sale  of  their  goods,  or  to  employ  others  to  sell  them 
at  such  price  as  the  defendants  should  designate,  cannot  be  disputed. 
Nor  can  it  be  that  a manufacturer  of  merchandise  cannot  agree  to  sell 


S8 


WALSH  V.  DWIGHT. 


[CHAP.  I. 

to  others  upon  condition  that  the  vendees  in  selling  at  retail  should 
charge  a specified  price  for  the  goods  sold,  or  should  sell  only  the 
manufactured  product  of  the  manufacturer.  If  a dealer  in  articles  of 
this  kind,  for  his  own  advantage,  agrees  to  confine  his  business  to  a 
particular  line  of  goods,  or  agrees  with  the  manufacturers  to  charge 
a particular  price  for  the  articles  which  he  sells  in  his  business,  such 
an  agreement  is  not  illegal  as  in  restraint  of  trade  or  as  tending  to 
create  a monopoly,  as  there  is  nothing  in  the  agreement  to  prevent 
others  from  engaging  in  the  business,  or  the  manufacturer  of  other 
articles  from  selling  their  product  to  any  one  who  is  willing  to  buy. 
There  is  nothing  to  prevent  an  individual  from  selling  any  property 
that  he  has  at  any  price  which  he  can  get  for  it.  Nor  is  there  any 
reason  why  an  individual  should  not  agree  that  he  will  not  sell  pro- 
perty which  he  owns  at  the  time  of  making  the  agreement,  or  which 
he  thereafter  acquires,  at  less  than  at  a fixed  price  ; and  certainly  a 
contract  of  this  kind  is  not  one  which  exposes  the  parties  to  it  to  any 
penalty,  or  subjects  them  to  an  action  for  damages  by  those  whose 
business  such  a contract  has  interfered  with. 

We  think,  therefore,  that  no  cause  of  action  was  alleged  in  the  com- 
plaint, and  the  judgment  is  affirmed  with  costs. 

Fair  Competition.  — Cases  bearing  upon  fair  competition  are  cited  in  the  appropriate 
footnotes  to  Unfair  Competition  for  the  purpose  of  better  comparison.  — Ed. 


SECT.  II.] 


HART  V.  ALDRIDGE. 


39 


B.  Unfair  Competition. 

(1)  The  Customer  Under  Contract. 

HART  v.  ALDRIDGE. 

In  the  King’s  Bench,  May  3,  1774. 

[ Reported  in  Cowper,  54.] 

This  came  before  the  court  on  a case  reserved  upon  the  following 
question : Whether  under  the  circumstances  of  this  case  the  plaintiff 
was  entitled  to  recover  ? It  was  an  action  of  trespass  on  the  case  for 
enticing  away  several  of  the  plaintiff’s  servants,  who  used  to  work  for 
him  in  the  capacity  of  journeymen  shoemakers.  The  jury  found  that 
Martin  and  Clayton  were  employed  as  journeymen  shoemakers  by  the 
plaintiff,  but  for  no  determinate  time,  but  only  by  the  piece,  and  had, 
at  the  time  of  the  trespass  laid,  each  of  them  a pair  of  shoes  unfinished  ; 
that  the  defendant  persuaded  them  to  enter  into  his  service,  and  to 
leave  these  shoes  unfinished,  which  they  accordingly  did. 

Mr.  Darwell , for  the  plaintiff,  stated  it  to  be  a question  of  common 
law,  and  that  the  only  point  for  the  opinion  of  the  court  was,  “ whether 
a journeyman  was  such  a servant  as  the  law  takes  notice  of?”  In 
support  of  which  proposition  he  insisted  that  a journeyman  is  as  much 
a servant  as  any  other  person  who  works  for  hire  or  wages  ; that  neither 
in  reason  nor  at  common  law  is  there  any  distinction  between  a ser- 
vant in  one  capacity  or  another,  and  that  the  injury  of  seduction  is  in 
all  cases  the  same,  though  the  recompense  in  damages  may  be  different. 
To  show  that  an  action  lay  at  common  law  for  taking  a servant  out  of 
his  master’s  service,  he  cited  Brooke  Abr.  tit.  Action  sur  le  case , pi.  38  ; 
11  Hen.  IV.,  fol.  23,  pi.  46.  In  Fitzherbert,  168  D,  it  is  laid  down  that 
“ if  a man  take  an  infant  or  other  out  of  another’s  service,  he  shall  be 
punished,  although  the  infant  or  other  were  not  retained.”  In  Brooke, 
tit.  Lab.  p.  21,  a distinction  is  taken  between  the  taking  a servant  out 
of  his  master’s  service  and  the  procuring  him  to  depart  or  retaining  him 
after  a voluntary  departure,  being  apprised  of  his  first  retainer : in  the 
two  last  of  which  cases  an  action  on  the  case  is  the  proper  remedy ; in 


40 


HART  V.  ALDRIDGE. 


[CIIAP.  I. 


the  former,  trespass  at  common  law.  But  lie  insisted  that  in  no  case 
had  there  ever  been  a distinction  taken  with  respect  to  the  time  for 
which  a servant  might  be  hired  ; nor  indeed  before  the  stat.  5 Eliz.  c.  4, 
was  any  precise  time  necessary,  the  object  of  which  statute  was  very 
different  from  the  question  before  the  court.  He  pressed  the  argument 
ab  inconvenienti , stating  that  it  would  be  of  great  detriment  to  the 
town,  where  the  whole  trade  was  in  a great  measure  carried  on  by  this 
sort  of  servant.  That  the  verdict  had  found  the  defendant  to  be 
apprised  of  the  retainer  of  the  servants,  it  being  in  proof  that  he  had 
desired  them  to  leave  their  work  then  in  hand  unfinished. 

Mr.  Wittes,  contra.  The  single  question  is,  whether  the  enticing 
away  a journeyman  shoemaker,  who  is  hired  to  make  a single  pair  of 
shoes,  is  such  an  iujury  to  his  master  as  that  an  action  will  lie  for  it. 
Now  the  jury  have  found  that  there  was  no  hiring  for  any  determinate 
time,  but  only  by  the  piece  : if  so,  they  could  not  be  the  plaintiffs  ser- 
vants; for  the  term  “ journeyman  ” does  not  import  that  they  belong 
to  any  particular  master. 

Lord  Mansfield  interrupted  him.  The  question  is,  whether  saying 
that  such  a one  is  a man’s  journeyman,  is  as  much  as  to  say  that  he  is 
such  a man’s  servant ; that  is,  whether  the  jury,  by  finding  him  to  be 
the  plaintiff’s  journeyman,  do  not  ex  vi  termini  find  him  to  be  his  ser- 
vant. A journeyman  is  a servant  by  the  day ; and  it  makes  no  differ- 
ence whether  the  work  is  done  by  the  day  or  by  the  piece.  He  was 
certainly  retained  to  finish  the  work  he  had  undertaken,  and  the  defend- 
ant knowingly  enticed  him  to  leave  it  unfinished. 

What  is  the  gist  of  the  action  ? That  the  defendant  has  enticed  a 
man  away  who  stood  in  the  relation  of  servant  to  the  plaintiff,  and  by 
whom  he  was  to  be  benefited.  I think  the  point  turns  upon  the  jury 
finding  that  the  persons  enticed  away  were  employed  by  the  plaintiff 
as  his  journeymen.  It  might  perhaps  have  been  different  if  the  men  had 
taken  work  for  everybody,  and  after  the  plaintiff  had  employed  them 
the  defendant  had  applied  to  them,  and  they  had  given  the  preference  to 
him  in  point  of  time.  For  if  a man  lived  in  his  own  house  and  took  in 
work  for  different  people,  it  would  be  a strong  ground  to  say  that  he 
was  not  the  journeyman  of  any  particular  master ; but  the  gist  of  the 
present  action  is  that  they  were  attached  to  this  particular  master. 

Aston,  J.  It  is  clear  that  a master  may  maintain  an  action  against 
any  one  for  taking  and  enticing  away  his  servant,  upon  the  ground  of 
the  interest  which  he  has  in  his  service  and  labor.  And  even  suppos- 
ing, as  my  lord  has  stated,  that  the  servant  did  live  in  his  own  house, 
if  he  were  employed  to  finish  a certain  number  of  shoes  for  a particular 
person  by  a fixed  time,  and  a third  person  enticed  him  away,  I think 
an  action  would  lie.  If  not,  it  might  be  of  very  bad  consequence  in 
trade.  He  is  a servant  quoad  hoc , and  though  the  seducer  and  enticer 


SECT.  II.] 


BLAKE  V.  LANYON. 


41 


is  much  the  worse,  yet  the  law  inflicts  a penalty  upon  workmen  leaving 
their  work  undone. 

Mr.  Justice  Willes  and  Mr.  Justice  Ashhurst  concurred. 

Per  Curiam.  Let  the  postea  be  delivered  to  the  plaintiff. 


BLAKE  r.  LANYON. 

In  the  King’s  Bench,  April  25,  1795. 

[Reported  in  6 Term  Reports,  221.] 

The  second  count  in  the  declaration  stated  that  the  plaintiff,  who  was 
a currier,  had  hired  and  retained  W.  Hobbs  to  be  his  servant  and 
journeyman,  &c.,  and  that  Hobbs,  against  the  will  of  the  plaintiff,  de- 
parted and  left  the  service  of  the  plaintiff,  &c.,  and  then  and  there  went 
to  the  defendant ; yet  the  defendant,  well  knowing  Hobbs  to  be  the  ser- 
vant of  the  plaintiff,  and  to  have  been  and  to  be  so  retained,  hired,  and 
employed  by  the  plaintiff,  &c.,  but  contriving,  &c. , “did  then  and 
there  receive  and  harbor  the  said  W.  Hobbs,  and  did  then  and  there 
retain,  keep,  and  employ  the  said  Hobbs  in  his  (defendant’s)  said  ser- 
vice, and  wholly  refused  to  deliver  him  to  the  plaintiff  his  master,” 
although  requested,  &c.,  and  unlawfully  detained,  entertained,  and 
kept  the  said  Hobbs,  so  then  being  the  servant  and  journeyman  of  the 
plaintiff,  in  his  (the  defendant’s)  service,  &c.,  whereby,  &c.  At  the 
trial  at  the  last  Launceston  assizes  it  appeared  that  Hobbs,  who  was 
retained  by  the  plaintiff  to  work  by  the  piece,  left  the  plaintiff’s  ser- 
vice on  a dispute  between  them,  the  plaintiff  having  beaten  him  ; that 
at  the  time  of  his  departure  he  had  some  work  in  hand ; that  he  then 
applied  for  work  to  the  defendant,  who  was  also  a currier,  and  who 
employed  him,  not  knowing  of  his  engagement  with  the  plaintiff ; but 
that,  in  the  course  of  a few  days  afterwards,  the  defendant  having  been 
apprised  by  the  plaintiff  that  Hobbs  was  his  servant  and  had  left  his 
work  unfinished,  and  being  threatened  with  an  action  in  case  he  con- 
tinued to  employ  Hobbs,  requested  the  servant  to  return  to  his  former 
master  and  finish  his  work.  This  Hobbs  refused,  and  the  defendant 
continued  him  in  his  service.  It  was  objected  on  behalf  of  the  defend- 
ant that  the  action  could  not  be  supported  on  the  second  count,  because 
it  either  imported  that  the  defendant  had  retained  Hobbs  in  his  ser- 
vice, knowing  him  to  be  the  servant  of  the  plaintiff,  which  was  not 
established  in  proof,  or  that  he  merely  continued  Hobbs  in  his  service 
after  he  had  notice  of  Hobbs’s  engagement  with  the  plaintiff,  for 


4 


42 


LUMLEY  V.  GYE. 


[CHAP.  I. 


which  no  action  could  be  maintained,  it  appearing  that  the  defendant 
did  not  know  that  Hobbs  was  the  plaintiff’s  servant  at  the  time  he 
first  employed  him.  But  Lawrence,  J.,  before  whom  the  cause  was 
tried,  overruled  the  objection,  saying  that  the  plaintiff  might  recover 
upon  the  second  count  if  the  jury  were  of  opinion  that  the  defendant 
continued  to  employ  Hobbs  after  he  knew  that  Hobbs  was  the  plaintiff’s 
servant.  The  jury  having  given  a verdict  for  the  plaintiff, 

Gibbs  now  renewed  his  objection,  stating  that  great  inconveniences 
would  result  from  a determination  against  the  defendant,  for  that,  in 
such  a case,  a person  engaged  in  a great  manufacture  might  be  deprived 
of  the  benefit  of  the  service  of  a journeyman  whom  he  had  retained  to 
do  a particular  piece  of  work,  not  knowing  at  the  time  of  hiring  that 
the  journeyman  was  under  any  engagement  with  any  other  master, 
before  the  servant  had  finished  his  work,  and  at  a moment  when  the 
materials  then  in  work  might  be  totally  spoiled  if  left  in  an  unfinished 
state. 

Sed  per  Curiam.  An  action  will  lie  for  receiving  or  continuing  to 
employ  the  servant  of  another  after  notice,  without  enticing  him 
away.  Here  no  fault  could  be  imputed  to  the  defendant  for  taking 
Hobbs  into  his  service  in  the  first  instance,  because  then  he  had  no 
notice  of  Hobbs’s  prior  engagement  with  the  plaintiff ; but,  as  soon 
as  he  had  notice  of  that  fact,  he  ought  to  have  discharged  him.  A 
person  who  contracts  with  another  to  do  certain  work  for  him  is  the 
servant  of  that  other  till  the  work  is  finished,  and  no  other  person  can 
employ  such  servant  to  the  prejudice  of  the  first  master ; the  very  act 
of  giving  him  employment  is  affording  him  the  means  of  keeping  out 
of  his  former  service.  Rule  refused . 


LUMLEY  GYE. 

In  the  Queen’s  Bench,  Trinity  Term,  1853. 

[Reported  in  2 Ellis  & Blackburn , 216.] 

Crompton,  J.1  The  declaration  in  this  case  consisted  of  three 
counts.  The  two  first  stated  a contract  between  the  plaintiff,  the  pro- 
prietor of  the  Queen’s  Theatre,  and  Miss  Wagner,  for  the  performance 
by  her  for  a period  of  three  months  at  the  plaintiff’s  theatre ; and  it 
then  stated  that  the  defendant,  knowing  the  premises  and  with  a 
malicious  intention,  whilst  the  agreement  was  in  full  force,  and  before 


1 The  statement  of  case  and  arguments  of  counsel  are  omitted.  — Ed. 


SECT.  IT.] 


LUMLEY  V.  GYE. 


43 


the  expiration  of  the  period  for  which  Miss  Wagner  was  engaged, 
wrongfully  and  maliciously  enticed  and  procured  Miss  Wagner  to 
refuse  to  sing  or  perform  at  the  theatre,  and  to  depart  from  and  aban- 
don her  contract  with  the  plaintiff  and  all  service  thereunder,  whereby 
Miss  Wagner  wrongfully,  during  the  full  period  of  the  engagement, 
refused  and  made  default  in  performing  at  the  theatre  ; and  special 
damage  arising  from  the  breach  of  Miss  Wagner’s  engagement  was 
then  stated.  The  third  count  stated  that  Miss  Wagner  had  been  hired 
and  engaged  by  the  plaintiff,  then  being  the  owner  of  her  Majesty’s 
Theatre,  to  perform  at  the  said  theatre  for  a certain  specified  period 
as  the  dramatic  artiste  of  the  plaintiff  for  reward  to  her  in  that  behalf, 
and  had  become  and  was  such  dramatic  artiste  for  the  plaintiff  at  his 
said  theatre  for  profit  to  the  plaintiff  in  that  behalf ; and  that  the 
defendant,  well  knowing  the  premises  and  with  a malicious  intention, 
whilst  Miss  Wagner  was  such  artiste  of  the  plaintiff,  wrongfully  and 
maliciously  enticed  and  procured  her,  so  being  such  artiste  of  the 
plaintiff,  to  depart  from  and  out  of  the  said  employment  of  the  plain- 
tiff, whereby  she  wrongfully  departed  from  and  out  of  the  said  service 
and  employment  of  the  plaintiff,  and  remained  and  continued  absent 
from  such  service  and  employment  until  the  expiration  of  her  said  hiring 
and  engagement  to  the  plaintiff  by  effluxion  of  time  ; and  special  damage 
arising  from  the  breach  of  Miss  Wagner’s  engagement  was  then  stated. 
To  this  declaration  the  defendant  demurred  ; and  the  question  for  our 
decision  is,  Whether  all  or  any  of  the  counts  are  good  in  substance? 

The  effect  of  the  two  first  counts  is,  that  a person,  under  a binding 
contract  to  perform  at  a theatre,  is  induced  by  the  malicious  act  of 
the  defendant  to  refuse  to  perform  and  entirely  to  abandon  her  con- 
tract ; whereby  damage  arises  to  the  plaintiff,  the  proprietor  of  the 
theatre.  The  third  count  differs,  in  stating  expressly  that  the  per- 
former had  agreed  to  perform  as  the  dramatic  artiste  of  the  plain- 
tiff, and  had  become  and  was  the  dramatic  artiste  of  the  plaintiff  for 
reward  to  her : and  that  the  defendant  maliciously  procured  her  to 
depart  out  of  the  employment  of  the  plaintiff  as  such  dramatic  artiste ; 
whereby  she  did  depart  out  of  the  employment  and  service  of  the 
plaintiff  ; whereby  damage  was  suffered  by  the  plaintiff.  It  was  said, 
in  support  of  the  demurrer,  that  it  did  not  appear  in  the  declaration 
that  the  relation  of  master  and  servant  ever  subsisted  between  the 
plaintiff  and  Miss  Wagner;  that  Miss  Wagner  was  not  averred, 
especially  in  the  two  first  counts,  to  have  entered  upon  the  service  of 
the  plaintiff ; and  that  the  engagement  of  a theatrical  performer,  even 
if  the  performer  has  entered  upon  the  duties,  is  not  of  such  a nature 
as  to  make  the  performer  a servant,  within  the  rule  of  law  which  gives 
an  action  to  the  master  for  the  wrongful  enticing  away  of  his  servant. 
And  it  was  laid  down  broadly,  as  a general  proposition  of  law,  that  no 
action  will  lie  for  procuring  a person  to  break  a contract,  although 
such  procuring  is  with  a malicious  intention  and  causes  great  and 
immediate  injury.  And  the  law  as  to  enticing  servants  was  said  to  bo 


44 


LUMLEY  V.  GYE. 


[CHAP.  I. 


contrary  to  the  general  rule  and  principle  of  law,  and  to  be  anomalous, 
and  probably  to  have  had  its  origin  from  the  state  of  society  when 
serfdom  existed,  and  to  be  founded  upon,  or  upon  the  equity  of,  the 
Statute  of  Laborers.  It  was  said  that  it  would  be  dangerous  to  hold 
that  an  action  was  maintainable  for  persuading  a third  party  to  break 
a contract,  unless  some  boundary  or  limits  could  be  pointed  out ; and 
that  the  remedy  for  enticing  away  servants  was  confined  to  cases 
where  the  relation  of  master  and  servant,  in  a strict  sense,  subsisted 
between  the  parties ; and  that,  in  all  other  cases  of  contract,  the  only 
remedy  was  against  the  party  breaking  the  contract. 

Whatever  may  have  been  the  origin  or  foundation  of  the  law  as  to 
enticing  of  servants,  and  whether  it  be,  as  contended  by  the  plaintiff,  an 
instance  and  branch  of  a wider  rule,  or  whether  it  be,  as  contended  by 
the  defendant,  an  anomaly  and  an  exception  from  the  general  rule  of 
law  on  such  subjects,  it  must  now  be  considered  clear  law  that  a per- 
son who  wrongfully  and  maliciously,  or,  which  is  the  same  thing,  with 
notice,  interrupts  the  relation  subsisting  between  master  and  servant  by 
procuring  the  servant  to  depart  from  the  master’s  service,  or  by  har- 
boring and  keeping  him  as  servant  after  he  has  quitted  it  and  during 
the  time  stipulated  for  as  the  period  of  service,  whereby  the  master  is 
injured,  commits  a wrongful  act  for  which  he  is  responsible  at  law.  I 
think  that  the  rule  applies  wherever  the  wrongful  interruption  operates 
to  prevent  the  service  during  the  time  for  which  the  parties  have  con- 
tracted that  the  service  shall  continue  ; and  I think  that  the  relation  of 
master  and  servant  subsists,  sufficiently  for  the  purpose  of  such  action, 
during  the  time  for  which  there  is  in  existence  a binding  contract  of 
hiring  and  service  between  the  parties ; and  I think  that  it  is  a fanciful 
and  technical  and  unjust  distinction  to  say  that  the  not  having  actually7, 
entered  into  the  service,  or  that  the  service  not  actually'  continuing, 
can  make  any  difference.  The  wrong  and  injury  are  surely  the  same, 
whether  the  wrong-doer  entices  away  the  gardener,  who  has  hired  him- 
self for  a year,  the  night  before  he  is  to  go  to  his  work,  or  after  he  has 
planted  the  first  cabbage  on  the  first  morning  of  his  service ; and  I 
should  be  sorry  to  support  a distinction  so  unjust,  and  so  repugnant  to 
common  sense,  unless  bound  to  do  so  by  some  rule  or  authority  of  law 
plainly  showing  that  such  distinction  exists.  . . -1 

The  objection  as  to  the  actual  employment  not  having  commenced 
would  not  apply  in  the  present  case  to  the  third  count,  which  states 
that  Miss  Wagner  had  become  the  artiste  of  the  plaintiff,  and  that  the 
defendant  had  induced  her  to  depart  from  the  employment.  But  it  was 
further  said  that  the  engagement,  employment  or  service,  in  the  pres- 
ent case,  was  not  of  such  a nature  as  to  constitute  the  relation  of  mas- 
ter and  servant,  so  as  to  warrant  the  application  of  the  usual  rule  of  law 
giving  a remedy  in  case  of  enticing  away  servants.  The  nature  of  the 
injury  and  of  the  damage  being  the  same,  and  the  supposed  right  of 

1 The  learned  judge  here  discussed  and  approved  of  Blake  v.  Lanyon.  — Ed. 


SECT.  II.] 


LUMLEY  V.  GYE. 


45 


action  being  in  strict  analogy  to  the  ordinary  case  of  master  and  servant, 
I see  no  reason  for  confining  the  case  to  services  or  engagements  under 
contracts  for  services  of  any  particular  description ; and  I think  that 
the  remedy,  in  the  absence  of  any  legal  reason  to  the  contrary,  may 
well  apply  to  all  cases  where  there  is  an  unlawful  and  malicious  enticing 
away  of  any  person  employed  to  give  his  personal  labor  or  service  for  a 
given  time  under  the  direction  of  a master  or  employer  who  is  injured 
by  the  wrongful  act ; more  especially  when  the  party  is  bound  to  give 
such  personal  services  exclusively  to  the  master  or  employer ; though 
I by  no  means  say  that  the  service  need  be  exclusive.  . . d 

In  deciding  this  case  on  the  narrower  ground,  I wish  by  no  means  to 
be  considered  as  deciding  that  the  larger  ground  taken  by  Mr.  Cowling 
is  not  tenable,  or  as  saying  that  in  no  case  except  that  of  master  and 
servant  is  an  action  maintainable  for  maliciously  inducing  another  to 
break  a contract  to  the  injury  of  the  person  with  whom  such  contract 
has  been  made.  It  does  not  appear  to  me  to  be  a sound  answer,  to 
say  that  the  act  in  such  cases  is  the  act  of  the  party  who  breaks  the 
contract ; for  that  reason  would  apply  in  the  acknowledged  case  of 
master  and  servant.  Nor  is  it  an  answer,  to  say  that  there  is  a remedy 
against  the  contractor,  and  that  the  party  relies  on  the  contract ; for, 
besides  that  reason  also  applying  to  the  case  of  master  and  servant,  the 
action  on  the  contract  and  the  action  against  the  malicious  wrong-doer 
may  be  for  a different  matter  ; and  the  damages  occasioned  by  such 
malicious  injury  might  be  calculated  on  a very  different  principle  from 
the  amount  of  the  debt  which  might  be  the  only  sum  recoverable  on 
the  contract.  Suppose  a trader,  with  a malicious  intent  to  ruin  a 
rival  trader , goes  to  a banker  or  other  party  who  owes  money  to  his 
rival,  and  begs  him  not  to  pay  the  money  which  he  owes  him,  and  by 
that  means  ruins  or  greatly  prejudices  the  party  : I am  by  no  means 
prepared  to  say  that  an  action  could  not  be  maintained,  and  that  dam- 
ages, beyond  the  amount  of  the  debt  if  the  injury  were  great,  or  much 
less  than  such  amount  if  the  injury  were  less  serious,  might  not  be  recov- 
ered. Where  two  or  more  parties  were  concerned  in  inflicting  such 
injury,  an  indictment,  or  a writ  of  conspiracy  at  common  law,  might 
perhaps  have  been  maintainable  ; and,  where  a writ  of  conspiracy  would 
lie  for  an  injury  inflicted  by  two,  an  action  on  the  case  in  the  nature  of 
conspiracy  will  generally  lie  ; and  in  such  action  on  the  case  the  plain- 
tiff is  entitled  to  recover  against  one  defendant  without  proof  of  any 
conspirac}’,  the  malicious  injury  and  not  the  conspiracy  being  the  gist 
of  the  action.2  In  this  class  of  cases  it  must  be  assumed  that  it  is  the 
malicious  act  of  the  defendant,  and  that  malicious  act  only,  which 

causes  the  servant  or  contractor  not  to  perform  the  work  or  contract 

which  he  would  otherwise  have  done.  The  servant  or  contractor  may 
be  utterly  unable  to  pay  anything  like  the  amount  of  the  damage 
sustained  entirely  from  the  wrongful  act  of  the  defendant;  and  it 

1 The  rest  of  the  opinion  on  this  point  is  omitted.  — Ed. 

2 See  note  (4)  to  Skinner  v.  Gunton,  1 Wins.  Saund.  230. 


46 


LUMLEY  V.  GYE. 


[CHAP.  I. 


would  seem  unjust,  and  contrary  to  the  general  principles  of  law,  if 
such  wrong-doer  were  not  responsible  for  the  damage  caused  by  his 
wrongful  and  malicious  act.  Several  of  the  cases  cited  by  Mr.  Cowling 
on  this  part  of  the  case  seem  well  worthy  of  attention. 

Without  however  deciding  any  such  more  general  question,  I think 
that  we  are  justified  in  applying  the  principle  of  the  action  for  enticing 
away  servants  to  a case  where  the  defendant  maliciously  procures  a 
party,  who  is  under  a valid  contract  to  give  her  exclusive  personal  ser- 
vices to  the  plaintiff  for  a specified  period,  to  refuse  to  give  such 
services  during  the  period  for  which  she  had  so  contracted , whereby 
the  plaintiff’  was  injured. 

I think,  therefore,  that  our  judgment  should  be  for  the  plaintiff*. 

Erle,  J.  The  question  raised  upon  this  demurrer  is,  Whether  an 
action  will  lie  by  the  proprietor  of  a theatre  against  a person  who  mali- 
ciously procures  an  entire  abandonment  of  a contract  to  perform  exclu- 
sive^ at  that  theatre  for  a certain  time  ; whereby  damage  was  sustained  ? 
And  it  seems  to  me  that  it  will.  The  authorities  are  numerous  and 
uniform,  that  an  action  will  lie  by  a master  against  a person  who  pro- 
cures that  a servant  should  unlawfully  leave  his  service.  The  principle 
involved  in  these  cases  comprises  the  present ; for,  there,  the  right  of 
action  in  the  master  arises  from  the  wrongful  act  of  the  defendant  in 
procuring  that  the  person  hired  should  break  his  contract,  by  putting 
an  end  to  the  relation  of  emplo}Ter  and  employed  ; and  the  present  case 
is  the  same.  If  it  is  objected  that  this  class  of  actions  for  procuring  a 
breach  of  contract  of  hiring  rests  upon  no  principle,  and  ought  not  to 
be  extended  beyond  the  cases  heretofore  decided,  and  that,  as  those 
have  related  to  contracts  respecting  trade,  manufactures,  or  household 
service,  and  not  to  performance  at  a theatre,  therefore  they  are  no 
authority  for  an  action  in  respect  of  a contract  for  such  performance  ; 
the  answer  appears  to  me  to  be,  that  the  class  of  cases  referred  to  rests 
upon  the  principle  that  the  procurement  of  the  violation  of  the  right  is 
a cause  of  action,  and  that,  when  this  principle  is  applied  to  a violation 
of  a right  arising  upon  a contract  of  hiring,  the  nature  of  the  service 
contracted  for  is  immaterial.  It  is  clear  that  the  procurement  of  the 
violation  of  a right  is  a cause  of  action  in  all  instances  where  the  viola- 
tion is  an  actionable  wrong,  as  in  violations  of  a right  to  property, 
whether  real  or  personal,  or  to  personal  security  *,  he  who  procures  the 
wrong  is  a joint  wrong-doer,  and  may  be  sued,  either  alone  or  jointly 
with  the  agent,  in  the  appropriate  action  for  the  wrong  complained  of. 
Where  a right  to  the  performance  of  a contract  has  been  violated  by  a 
breach  thereof,  the  remedy  is  upon  the  contract  against  the  contract- 
ing party ; and,  if  he  is  made  to  indemnify  for  such  breach,  no  further 
recourse  is  allowed  ; and,  as  in  case  of  the  procurement  of  a breach  of 
contract  the  action  is  for  a wrong  and  cannot  be  joined  with  the  action 
on  the  contract,  and  as  the  act  itself  is  not  likely  to  be  of  frequent 
occurrence  nor  easjT  of  proof,  therefore  the  action  for  this  wrong,  in 
respect  of  other  contracts  than  of  those  hiring,  are  not  numerous  ; but 


SECT.  II.] 


LUMLEY  v.  GYE. 


47 


still  they  seem  to  me  sufficient  to  show  that  the  principle  has  been 
recognized.  In  Winsmore  v.  Greenbank  it  was  decided  that  the  pro- 
curing of  a breach  of  the  contract  of  a wife  is  a cause  of  action.  The 
only  distinction  in  principle  between  this  case  and  other  cases  of 
contracts  is,  that  the  wife  is  not  liable  to  be  sued ; but  the  judgment 
rests  on  no  such  grounds ; the  procuring  a violation  of  the  plaintiff’s 
right  under  the  marriage  contract  is  held  to  be  an  actionable  wrong. 
In  Green  v.  Button  1 it  was  decided  that  the  procuring  a breach  of  a 
contract  of  sale  of  goods  bjr  a false  claim  of  lien  is  an  actionable 
wrong.  Sheperd  v.  Wakeman 2 is  to  the  same  effect,  where  the  defend- 
ant procured  a breach  of  a contract  of  marriage  by  asserting  that  the 
woman  was  already  married.  In  Ashley  v.  Harrison  3 and  in  Taylor 
v.  Neri 4 it  was  properly  decided  that  the  action  did  not  lie,  because  the 
battery,  in  the  first  case,  and  the  libel,  in  the  second  case,  upon  the 
contracting  parties  were  not  shown  to  be  with  intent  to  cause  those 
persons  to  break  their  contracts,  and  so  the  defendants  by  their  wrong- 
ful acts  did  not  procure  the  breaches  of  contract  which  were  com- 
plained of.  If  they  had  so  acted  for  the  purpose  of  procuring  those 
breaches,  it  seems  to  me  they  would  have  been  liable  to  the  plaintiffs. 
To  these  decisions,  founded  on  the  principle  now  relied  upon,  the  cases 
for  procuring  breaches  of  contracts  of  hiring  should  be  added  ; at  least 
Lord  Mansfield’s  judgment  in  Bird  v.  Randall 5 is  to  that  effect.  This 
principle  is  supported  by  good  reason.  He  who  maliciousfy  procures  a 
damage  to  another  by  violation  of  his  right  ought  to  be  made  to  indem- 
nify ; and  that,  whether  he  procures  an  actionable  wrong  or  a breach 
of  contract.  He  who  procures  the  non-delivery  of  goods  according  to 
contract  may  inflict  an  injury,  the  same  as  he  who  procures  the  abstrac- 
tion of  goods  after  delivery ; and  both  ought  on  the  same  ground  to  be 
made  responsible.  The  remedy  on  the  contract  may  be  inadequate,  as 
where  the  measure  of  damages  is  restricted ; or  in  the  case  of  non- 
payment of  a debt  where  the  damage  may  be  bankruptcy  to  the  cred- 
itor who  is  disappointed,  but  the  measure  of  damages  against  the 
debtor  is  interest  only  ; or,  in  the  case  of  the  non-delivery  of  the  goods, 
the  disappointment  may  lead  to  a heavy  forfeiture  under  a contract  to 
complete  a work  within  a time,  but  the  measure  of  damages  against  the 
vendor  of  the  goods  for  non-delivery  may  be  only  the  difference  between 
the  contract  price  and  the  market  value  of  the  goods  in  question  at 
the  time  of  the  breach.  In  such  cases,  he  who  procures  the  damage 
maliciously  might  justly  be  made  responsible  beyond  the  liability  of 
the  contractor. 

With  respect  to  the  objection  that  the  contracting  party  had  not 
begun  the  performance  of  the  contract,  I do  not  think  it  a tenable 
ground  of  defence.  The  procurement  of  the  breach  of  the  contract  may 
be  equally  injurious,  whether  the  service  has  begun  or  not,  and  in  my 

1 2 C.  M.  & R.  707.  2 i gid.  79. 

8 1 Peake’s  N.  P.  C.  194;  s.  c.  1 Esp.  N.  P.  C.  48. 

4 1 Esp.  N.  P.  C.  386.  5 3 Burr.  1345. 


48 


LUMLEY  V.  GYE. 


[CHAP.  I. 


judgment  ought  to  be  equally  actionable,  as  the  relation  of  employer 
and  employed  is  constituted  by  the  contract  alone,  and  no  act  of  service 
is  necessary  thereto. 

The  result  is  that  there  ought  to  be,  in  nty  opinion,  judgment  for 
the  plaintiff. 

Wightman,  J.1  It  was  contended,  for  the  defendant,  that  an  action 
is  not  maintainable  for  inducing  another  to  break  a contract,  though 
the  inducement  is  malicious  and  with  intent  to  injure ; and  that  the 
breach  of  contract  complained  of  is,  in  contemplation  of  law,  the  wrong- 
ful act  of  the  contracting  party,  and  not  the  consequence  of  the  mali- 
cious persuasion  of  the  party  charged ; which  ought  not  to  have  had 
any  effect  or  influence ; and  that  the  damage  is  not  the  legal  conse- 
quence of  the  acts  of  the  defendant.  It  was  further  urged,  that  the 
cases  in  which  actions  have  been  held  maintainable  for  seducing  ser- 
vants and  apprentices  from  the  employ  of  their  masters  are  exceptions 
to  the  general  rule,  and  are  not  to  be  extended ; and  that  the  present 
case,  as  it  appears  upon  the  declaration,  is  not  within  any  of  the 
excepted  cases. 

With  respect  to  the  first  and  second  counts  of  the  declaration,  it  was 
contended,  for  the  plaintiff,  that  an  action  on  the  case  is  maintainable 
for  maliciously  procuring  a person  to  refuse  to  perform  a contract, 
into  which  he  has  entered,  and  by  which  refusal  the  plaintiff  has  sus- 
tained an  injmy ; and,  though  no  case  was  cited  upon  the  argument 
in  which  such  an  action  had  been  brought,  or  directly  held  to  be  main- 
tainable, it  was  said  that  on  principle  such  action  was  maintainable ; 
and  the  authority  of  Lord  Chief  Baron  Comyns  was  cited,  that  in  all 
cases  where  a man  has  a temporal  loss  or  damage  by  the  wrong  of 
another  he  may  have  an  action  on  the  case.  In  the  present  case  there 
is  the  malicious  procurement  of  Miss  Wagner  to  break  her  contract, 
and  the  consequent  loss  to  the  plaintiff.  Why  then  may  not  the  plain- 
tiff maintain  an  action  on  the  case?  Because,  as  it  is  said,  the  loss  or 
damage  is  not  the  natural  or  legal  consequence  of  the  acts  of  the 
defendant.  There  is  the  injuria , and  the  damnum  ; but  it  is  contended 
that  the  damnum  is  neither  the  natural  nor  legal  consequence  of  the 
injuria , and  that,  consequently,  the  action  is  not  maintainable,  as  the 
breaking  her  contract  was  the  spontaneous  act  of  Miss  Wagner  herself, 
who  was  under  no  obligation  to  yield  to  the  persuasion  or  procurement 
of  the  defendant.  And  the  case  of  Vicars  v.  Wilcocks,2  which  though 
it  has  been  much  brought  into  question  has  never  been  directly  over- 
ruled, was  relied  upon  as  an  authority  upon  this  point  for  the  defend- 
ant. That  case,  however,  is  clearly  distinguishable  from  the  present 
upon  the  ground,  suggested  by  Lord  Chief  Justice  Tindal  in  Ward  v. 
Weeks,8  that  the  damage  in  that  case,  as  well  as  in  Vicars  v.  Wilcocks,2 
was  not  the  necessary  consequence  of  the  original  slander  uttered  by 
the  defendants,  but  the  result  of  spontaneous-  and  unauthorized  com- 

1 Only  a part  of  the  opinion  of  Wightman,  J.,  is  given.  — Ed. 

* 8 East,  1.  3 7 Bing.  211,  215. 


SECT.  II.] 


LUMLEY  V.  GYE. 


49 


munications  made  by  those  to  whom  the  words  were  uttered  by  the 
defendants.  The  distinction  is  taken  in  Green  v.  Button,1  in  which  it 
was  held  that  an  action  was  maintainable  against  the  defendant  for 
maliciously  and  wrongfully  causing  certain  persons  to  refuse  to  deliver 
goods  to  the  plaintiff,  by  asserting  that  he  had  a lien  upon  them  and 
ordering  these  persons  to  retain  the  goods  until  further  orders  from 
him.  It  was  urged  for  the  defendant  in  that  case,  that,  as  the  persons 
in  whose  custody  the  goods  were,  were  under  no  legal  obligation  to  obey 
* the  orders  of  the  defendant,  it  was  the  mere  spontaneous  act  of  these 
persons  which  occasioned  the  damage  to  the  plaintiff ; but  the  court 
held  the  action  to  be  maintainable,  though  the  defendant  did  make  the 
claim  as  of  right,  he  having  done  so  maliciousty  and  without  any  rea- 
sonable cause,  and  the  damage  accruing  thereb}\  In  Winsmore  v. 
Greenbank  the  plaintiff  in  his  first  count  alleged  that,  his  wife  having 
unlawfully  left  him  and  lived  apart  from  him,  during  which  time  a con- 
siderable fortune  was  left  for  her  separate  use,  and  she  being  willing  to 
return  to  the  plaintiff,  whereby  he  would  have  had  the  benefit  of  her 
fortune,  the  defendant,  in  order  to  prevent  the  plaintiff  from  receiving 
any  benefit  from  the  wife’s  fortune  and  the  wife  from  being  reconciled 
to  him,  unlawfully  and  unjustly  persuaded,  procured  and  enticed  the 
wife  to  continue  absent  from  the  plaintiff,  and  she  did  by  means  thereof 
continue  absent  from  him,  whereby  he  lost  the  comfort  and  society  of 
the  wife  and  her  aid  in  his  domestic  affairs,  and  the  profit  and  advan- 
tage he  would  have  had  from  her  fortune.  Upon  motion  in  arrest  of 
judgment  this  count  was  held  good,  and  that  it  sufficiently  appeared 
that  there  was  both  damnum  and  injuria:  it  was  prima  facie  an 
unlawful  act  of  the  wife  to  live  apart  from  her  husband ; and  it  was 
unlawful,  and  therefore  tortious,  in  the  defendant  to  procure  and  per- 
suade her  to  do  an  unlawful  act ; and,  as  the  damage  to  the  plaintiff 
was  occasioned  thereby,  an  action  on  the  case  was  maintainable.  This 
case  appears  to  me  to  be  an  exceedingly  strong  authority  in  the  plain- 
tiff’s favor  in  the  present  case.  It  was  undoubtedly  prima  facie  an 
unlawful  act  on  the  part  of  Miss  Wagner  to  break  her  contract,  and 
therefore  a tortious  act  of  the  defendant  maliciously  to  procure  her  to 
do  so ; and,  if  damage  to  the  plaintiff  followed  in  consequence  of  that 
tortious  act  of  the  defendant,  it  would  seem,  upon  the  authority  of  the 
two  cases  referred  to,  of  Green  v.  Button  1 and  Winsmore  v.  Green- 
bank,  as  well  as  upon  general  principle,  that  an  action  on  the  case  is 
maintainable.  A doubt  was  expressed  by  Lord  Eldon,  in  Morris  v. 
Langdale,2  whether  in  an  action  on  the  case  for  slander  the  plaintiff 
could  succeed  upon  an  allegation  of  special  damage,  that,  by  reason  of 
the  speaking  of  the  words,  other  persons  refused  to  perform  their  con- 
tracts with  him  ; Lord  Eldon  observing  that  that  was  a damage  which 
might  be  compensated  in  actions  by  the  plaintiff  against  such  persons. 
It  has,  however,  been  remarked  with  much  force  by  Mr.  Starkie,  in  his 


1 2 C.  M.  & R.  707. 


2 2 Bos.  k Pul.  284,  289. 


50 


LUMLEY  V.  GYE. 


[CHAP.  I. 


Treatise  on  the  Law  of  Libel,  vol.  i.  p.  205  (2d  edition),  that  such  a 
doctrine  would  be  productive  of  much  hardship  in  many  cases,  as  a 
mere  right  of  action  for  damages  for  non-performance  of  a contract  can 
hardly  be  considered  a full  compensation  to  a person  who  has  lost  the 
immediate  benefit  of  the  performance  of  it.  The  doubt  indeed  is  hardly 
sustainable  on  principle ; and  there  are  many  cases  in  which  actions 
have  been  maintained  for  slanderous  words,  not  in  themselves  action- 
able, on  the  ground  of  the  speaking  of  the  words  having  induced  other  per- 
sons to  act  wrongfully  towards  the  plaintiffs  ; as  in  the  case  of  Newman 
v.  Zachary,  where  an  action  on  the  case  was  held  to  be  maintainable 
for  wrongfully  representing  to  the  bailiff  of  a manor  that  a sheep  was  an 
estra}*,  in  consequence  of  which  it  was  wrongful^7  seized.  Upon  the 
whole,  therefore,  I am  of  opinion  that,  upon  the  general  principles  upon 
which  actions  upon  the  case  are  founded,  as  well  as  upon  authority,  the 
present  action  is  maintainable. 

Coleridge,  J.  It  may  simplify  what  I have  to  say,  if  I first  state 
what  are  the  conclusions  which  I seek  to  establish.  They  are  these : 
that  in  respect  of  breach  of  contract  the  general  rule  of  our  law  is  to 
confine  its  remedies  b}7  action  to  the  contracting  parties,  and  to  dam- 
ages directly  and  proximately  consequential  on  the  act  of  him  who  is 
sued ; 1 that,  as  between  master  and  servant,  there  is  an  admitted 
exception ; that  this  exception  dates  from  the  Statute  of  Laborers,  23 
Edw.  III.,  and  both  on  principle  and  according  to  authority  is  limited 
by  it.  If  I am  right  in  these  positions,  the  conclusion  will  be  for  the 
defendant,  because  enough  appears  on  this  record  to  show,  as  to  the 
first,  that  he,  and,  as  to  the  second,  that  Johanna  Wagner,  is  not  within 
the  limits  so  drawn. 

First  then,  that  the  remedy  for  breach  of  contract  is  by  the  general 
rule  of  our  law  confined  to  the  contracting  parties.  I need  not  argue 
that,  if  there  be  any  remedy  by  action  against  a stranger,  it  must  be  by 
action  on  the  case.  Now,  to  found  this,  there  must  be  both  injury  in 
the  strict  sense  of  the  word  (that  is  a wrong  done),  and  loss  resulting 
from  that  injury : the  injury  or  wrong  done  must  be  the  act  of  the 
defendant ; and  the  loss  must  be  a direct  and  natural,  not  a remote  and 
indirect,  consequence  of  the  defendant’s  act.  Unless  there  be  a loss 
thus  directly  and  proximately  connected  with  the  act,  the  mere  inten- 
tion, or  even  the  endeavor,  to  produce  it  will  not  found  the  action. 
The  existence  of  the  intention,  that  is  the  malice,  will  in  some  cases  be 
an  essential  ingredient  in  order  to  constitute  the  wrongfulness  or  inju- 
rious nature  of  the  act ; but  it  will  neither  supply  the  want  of  the  act 
itself,  or  its  hurtful  consequence : however  complete  the  injuria , and 
whether  with  malice  or  without,  if  the  act  be  after  all  sine  damno , no 
action  on  the  case  will  lie.  The  distinction  between  civil  and  criminal 
proceedings  in  this  respect  is  clear  and  material ; and  a recollection  of 

1 Only  the  opinion  of  Coleridge,  J.,  on  this  point  is  given.  It  is  now  generally 
admitted  that  this  learned  judge,  although  wrong  on  this  point,  was  right  in  maintain- 
ing that  the  actress  was  not  a servant.  — Ed. 


SECT.  II.] 


LUMLEY  V.  GYE. 


51 


the  different  objects  of  the  two  will  dispose  of  any  argument  founded 
merely  on  the  allegation  of  malice  in  this  declaration,  if  I shall  be  found 
right  in  thinking  that  the  defendant’s  act  has  not  been  the  direct  or 
proximate  cause  of  the  damage  which  the  plaintiff  alleges  he  has  sus- 
tained. If  a contract  has  been  made  between  A.  and  B.  that  the  latter 
should  go  supercargo  for  the  former  on  a voyage  to  China,  and  C., 
however  malicious^,  persuades  B.  to  break  his  contract,  but  in  vain,  no 
one,  I suppose,  would  contend  that  any  action  would  lie  against  C. 
On  the  other  hand,  suppose  a contract  of  the  same  kind  made  between 
the  same  parties  to  go  to  Sierra  Leone,  and  C.  urgently  and  bona  fide 
advises  B.  to  abandon  his  contract,  which  on  consideration  B.  does, 
whereby  loss  results  to  A. ; I think  no  one  will  be  found  bold  enough 
to  maintain  that  an  action  would  lie  against  C.  In  the  first  case  no 
loss  has  resulted ; the  malice  has  been  ineffectual ; in  the  second, 
though  a loss  has  resulted  from  the  act,  that  act  was  not  C.’s,  but 
entirely  and  exclusively  B.’s  own.  If  so,  let  malice  be  added,  and  let 
C.  have  persuaded,  not  bona  fide  but  mala  fide  and  malicious^,  still, 
all  other  circumstances  remaining  the  same,  the  same  reason  applies ; 
for  it  is  malitia  sine  damno , if  the  hurtful  act  is  entirely  and  exclu- 
sively B.’s,  which  last  circumstance  cannot  be  affected  by  the  presence 
or  absence  of  malice  in  C.  Thus  far  I do  not  apprehend  much  differ- 
ence of  opinion  : there  would  be  such  a manifest  absurdity  in  attempt- 
ing to  trace  up  the  act  of  a free  agent  breaking  a contract  to  all  the 
advisers  who  may  have  influenced  his  mind,  more  or  less  honestl}*,  more 
or  less  powerfully,  and  to  make  them  responsible  civilly  for  the  conse- 
quences of  what  after  all  is  his  own  act,  and  for  the  whole  of  the 
hurtful  consequences  of  which  the  law  makes  him  directly  and  fully 
responsible,  that  I believe  it  will  never  be  contended  for  seriousty. 
This  was  the  principle  on  which  Lord  Kenyon  proceeded  in  Ashley  v. 
Harrison.1  There  the  defendant  libelled  Madame  Mara ; the  plaintiff 
alleged  that,  in  consequence,  she,  from  apprehension  of  being  hissed 
and  ill-treated,  forbore  to  sing  for  him,  though  engaged,  whereby  he 
lost  great  profits.  Lord  Kenyon  nonsuited  the  plaintiff : he  thought  the 
defendant’s  act  too  remote  from  the  damage  assigned.  But  it  will  be 
said  that  this  declaration  charges  more  than  is  stated  in  the  case  last 
supposed,  because  it  alleges,  not  merely  a persuasion  or  enticement, 
but  a procuring.  In  Winsmore  v.  Greenbank  the  same  word  w^as 
used  in  the  first  count  of  the  declaration,  which  alone  is  material  to  the 
present  case  ; and  the  Chief  Justice,  who  relied  on  it,  and  distinguished 
it  from  enticing,  defined  it  to  mean  u persuading  with  effect ; ” and  he 
held  that  the  husband  might  sue  a stranger  for  persuading  with  effect 
his  wife  to  do  a wrongful  act  directly  hurtful  to  himself.  Although  I 
should  hesitate  to  be  bound  by  every  word  of  the  judgment,  yet  I am 
not  called  on  to  question  this  definition  or  the  decision  of  the  case. 
Persuading  with  effect,  or  effectually  or  successfully  persuading,  may 


1 1 Peake’s  N.  P.  C.  194;  s.  c.  1 Esp.  N.  P.  C.  48. 


52 


LUMLEY  V.  GYE. 


[CHAP.  I. 


no  doubt  sometimes  be  actionable  — as  in  trespass  — even  where  it  is 
used  towards  a free  agent ; the  maxims,  qui  facit  per  alium  facit  per 
se , and  respondeat  superior,  are  unquestionable  ; but,  where  they  apply, 
the  wrongful  act  done  is  properly  charged  to  be  the  act  of  him  who  has 
procured  it  to  be  done.  He  is  sued  as  a principal  trespasser,  and  the 
damage,  if  proved,  flows  directly  and  immediately  from  his  act,  though 
it  was  the  hand  of  another,  and  he  a free  agent,  that  was  employed. 
But,  when  you  apply  the  term  of  effectual  persuasion  to  the  breach  of 
a contract,  it  has  obviously  a different  meaning  ; the  persuader  has  not 
broken  and  could  not  break  the  contract,  for  he  had  never  entered  into 
any  ; he  cannot  be  sued  upon  the  contract ; and  yet  it  is  the  breach  of 
the  contract  only  that  is  the  cause  of  damage.  Neither  can  it  be  said 
that  in  breaking  the  contract  the  contractor  is  the  agent  of  him  who 
procures  him  to  do  so ; it  is  still  his  own  act ; he  is  principal  in  so 
doing,  and  is  the  only  principal.  This  answer  may  seem  technical ; 
but  it  really  goes  to  the  root  of  the  matter.  It  shows  that  the  procurer 
has  not  done  the  hurtful  act ; what  he  has  done  is  too  remote  from  the 
damage  to  make  him  answerable  for  it.  The  case  itself  of  Winsmore  v. 
Greenbank  seems  to  me  to  have  little  or  no  bearing  on  the  present : a 
wife  is  not,  as  regards  her  husband,  a free  agent  or  separate  person ; 
if  to  be  considered  so  for  the  present  purpose,  she  is  rather  in  the  char- 
acter of  a servant,  with  this  important  peculiarity,  that,  if  she  be 
induced  to  withdraw  from  his  society  and  cohabit  with  another  or  do 
him  any  wrong,  no  action  is  maintainable  by  him  against  her.  In  the 
case  of  criminal  conversation,  trespass  lies  against  the  adulterer  as  for  an 
assault  on  her,  however  she  may  in  fact  have  been  a willing  party  to  all 
that  the  defendant  had  done.  No  doubt,  therefore,  effectual  persuasion 
to  the  wife  to  withdraw  and  conceal  herself  from  her  husband  is  in  the  eye 
of  the  law  an  actual  withdrawing  and  concealing  her ; and  so,  in  other 
counts  of  the  declaration,  was  it  charged  in  this  very  case  of  Winsmore 
v.  Greenbank.  A case  explainable  and  explained  on  the  same  principle 
is  that  of  ravishment  of  ward.  The  writ  for  this  lay  against  one  who 
procured  a man’s  ward  to  depart  from  him  ; and,  where  this  was  urged 
in  a case  hereafter  to  be  cited,1  Judge  Hankford2  gives  the  answer: 
the  reason  is,  he  says,  because  the  ward  is  a chattel,  and  vests  in  him 
who  has  the  right.  None  of  this  reasoning  applies  to  the  case  of  a 
breach  of  contract ; if  it  does,  I should  be  glad  to  know  how  any 
treatise  on  the  law  of  contract  could  be  complete  without  a chapter  on 
this  head,  or  how  it  happens  that  we  have  no  decisions  upon  it.  Cer- 
tainly no  subject  could  well  be  more  fruitful  or  important ; important 
contracts  are  more  commonly  broken  with  than  without  persuaders  or 
procurers,  and  these  often  responsible  persons  when  the  principals  may 
not  be  so.  I am  aware  that  with  respect  to  an  action  on  the  case  the 
argument  primce  impressionis  is  sometimes  of  no  weight.  If  the  cir- 

1 Mich.  11  H.  4,  fol.  23  A.  pi.  46,  2 E.  & B.  255. 

2 William  Hankford,  Justice  of  the  Common  Pleas  in  1398,  afterwards,  in  1414 
(1  H.  5),  Chief  Justice  of  England. 


SECT.  II.] 


LUMLEY  V.  GYE. 


53 


cumstances  under  which  the  action  would  be  brought  have  not  before 
arisen,  or  are  of  rare  occurrence,  it  will  be  of  none,  or  only  of  inconsid- 
erable weight ; but,  if  the  circumstances  have  been  common,  if  there 
has  been  frequently  occasion  for  the  action,  I apprehend  it  is  important 
to  find  that  the  action  has  yet  never  been  tried.  Now  we  find  a plenti- 
ful supply  both  of  text  and  decision  in  the  case  of  seduction  of  servants  ; 
and  what  inference  does  this  lead  to,  contrasted  with  the  silence  of  the 
books  and  the  absence  of  decisions  on  the  case  of  breach  of  ordinary 
contracts  ? Let  this  too  be  considered : that,  if  by  the  common  law  it 
was  actionable  effectually  to  persuade  another  to  break  his  contract  to 
the  damage  of  the  contractor,  it  would  seem  on  principle  to  be  equally 
so  to  uphold  him,  after  the  breach,  in  continuing  it.  Now  upon  this  the 
two  conflicting  cases  of  Adams  v.  Bafeald  1 and  Blake  v.  Lanyon  are 
worth  considering.  In  the  first,  two  judges  against  one  decided  that  an 
action  does  not  lie  for  retaining  the  servant  of  another,  unless  the 
defendant  has  first  procured  the  servant  to  leave  his  master ; in  the 
second,  this  was  overruled  ; and,  although  it  was  taken  as  a fact  that 
the  defendant  had  hired  the  servant  in  ignorance  and,  as  soon  as  he 
knew  that  he  had  left  his  former  master  with  work  unfinished,  requested 
him  to  return,  which  we  must  understand  to  have  been  a real,  earnest 
request,  and  onlj7  continued  him  after  his  refusal,  which  we  must  take 
to  have  been  his  independent  refusal,  it  was  held  that  the  action  lay ; 
and  this  reason  is  given  : “ The  very  act  of  giving  him  emplo}rment  is 
affording  him  the  means  of  keeping  out  of  his  former  service.”  Would 
the  judges  who  laid  this  down  have  held  it  actionable  to  give  a stray 
servant  food  or  clothing  or  lodging  out  of  charity?  Yet  these  would 
have  been  equally  means  of  keeping  him  out  of  his  former  service. 
The  true  ground  on  which  this  action  was  maintainable,  if  at  all,  was 
the  Statute  of  Laborers,  to  which  no  reference  was  made.  But  I men- 
tion this  case  now  as  showing  how  far  courts  of  justice  may  be  led  if 
they  allow  themselves,  in  the  pursuit  of  perfectly  complete  remedies  for 
all  wrongful  acts,  to  transgress  the  bounds  which  our  law,  in  a wise 
consciousness  as  I conceive  of  its  limited  powers,  has  imposed  on  itself, 
of  redressing  only  the  proximate  and  direct  consequences  of  wrongful 
acts.  To  draw  a line  between  advice,  persuasion,  enticement  and  pro- 
curement is  practically  impossible  in  a court  of  justice  ; who  shall  say 
how  much  of  a free  agent’s  resolution  flows  from  the  interference  of 
other  minds,  or  the  independent  resolution  of  his  own?  This  is  a mat- 
ter for  the  casuist  rather  than  the  jurist ; still  less  is  it  for  the  jurj^man. 
Again,  why  draw  the  line  between  bad  and  good  faith?  If  advice  given 
mala  fide,  and  loss  sustained,  entitle  me  to  damages,  wl^,  though  the 
advice  be  given  honestly,  but  under  wrong  information,  with  a loss 
sustained,  am  I not  entitled  to  them  ? According  to  all  legal  analogies 
the  bona  fides  of  him  who,  by  a conscious  wilful  act,  directly  injures 
me  will  not  relieve  him  from  the  obligation  to  compensate  me  in  dam- 
ages for  my  loss.  Again,  where  several  persons  happen  to  persuade  to 

1 1 Leon.  240. 


54 


CHAMBERS  V.  BALDWIN. 


[CHAP.  I. 


the  same  effect,  and  in  the  result  the  party  persuaded  acts  upon  the 
advice,  how  is  it  to  be  determined  against  whom  the  action  may  be 
brought  ? Judgment  for  plaintiff. 

— 

CHAMBERS  & MARSHALL  v.  BALDWIN. 

In  the  Court  of  Appeals  of  Kentucky,  1891. 

[ Reported  91  Ky.  121.1] 

The  substance  of  the  cause  of  action  was  that  plaintiffs  had  made  a 
contract  with  one  Wise  for  his  crop  of  tobacco  at  5c.  per  lb.  and  that 
thereafter  defendants  with  full  knowledge  of  this  contract  induced 
Wise  to  sell  his  crop  to  them  at  a higher  price. 

Judge  Lewis  delivered  the  opinion  of  the  court. 

Upon  neither  principle  nor  authority  could  this  action  have  been 
maintained  if  the  same  thing  it  is  complained  appellee  did  had  been 
done  by  a person  on  friendly  terms  with  appellant,  Chambers,  or  by  a 
stranger,  though  he  might  have  profited  by  the  purchase  to  the  dam- 
age of  appellants  ; for,  competition  in  every  branch  of  business  being 
not  only  lawful,  but  necessary  and  proper,  no  person  should  or  can, 
upon  principle,  be  made  liable  in  damages  for  buying  what  may  be 
freely  offered  for  sale  by  a person  having  the  right  to  sell,  if  done 
without  fraud,  merely  because  there  may  be  a preexisting  contract  be- 
tween the  seller  and  a rival  in  business,  for  a breach  of  which  each 
party  may  have  his  legal  remedy  against  the  other ; nor,  the  right  to 
buy  existing,  should  it  make  any  difference,  in  a legal  aspect,  what 
motive  influenced  the  purchaser.  Competition  frequently  engenders 
not  only  a spirit  of  rivalry  but  enmity,  and  if  the  motive  influencing 
every  business  transaction  that  may  result  in  injury  or  inconvenience 
to  a business  rival  was  made  the  test  of  its  legality,  litigation  and 
strife  would  be  vexatiously  and  unnecessarily  increased,  and  the  sale 
and  exchange  of  commodities  very  much  hindered. 

Demurrer  sustained. 

1 This  case  is  abridged.  — Ed. 


SECT.  II.] 


BOWEN  V.  HALL. 


55 


BOWEN  v.  HALL  and  Others. 

In  the  Court  of  Appeal,  February  5,  1881. 

[ Reported  in  6 Queen’s  Bench  Division , 333.] 

Brett,  L.  J.1  The  Lord  Chancellor  agrees  with  me  in  the  judgment 
I am  about  to  read,  and  it  is  to  be  taken  therefore  as  the  judgment  of 
the  Lord  Chancellor  as  well  as  of  myself. 

In  this  case,  we  were  of  opinion  at  the  hearing,  that  the  contract 
was  one  for  personal  service,  though  not  one  which  established  strictly 
for  all  purposes  the  relation  of  master  and  servant  between  the  plain- 
tiff and  Pearson.  We  were  of  opinion  that  there  was  evidence  to 
justify  a finding  that  Pearson  had  been  induced  by  the  defendants  to 
break  his  contract  of  service,  that  he  had  broken  it,  and  had  thereby, 
in  fact,  caused  some  injury  to  the  plaintiff.  We  were  of  opinion  that 
the  act  of  the  defendants  was  done  with  knowledge  of  the  contract 
between  the  plaintiff  and  Pearson,  was  done  in  order  to  obtain  an 
advantage  for  one  of  the  defendants  at  the  expense  of  the  plaintiff,  was 
done  from  a wrong  motive,  and  would  therefore  justify  a finding  that 
it  was  done  in  that  sense  maliciously.  There  remained  nevertheless 
the  question,  whether  there  was  any  evidence  to  be  left  to  the  jury 
against  the  defendants  Hall  and  Fletcher,  it  being  objected  that  Pearson 
was  not  a servant  of  the  plaintiff.  The  case  was  accurately  within  the 
authority  of  the  case  of  Lumley  v.  Gye.  If  that  case  was  rightly 
decided,  the  objection  in  this  case  failed.  The  only  question  then  which 
we  took  time  to  consider  was  whether  the  decision  of  the  majorit}^  of 
the  judges  in  that  case  should  be  supported  in  a Court  of  Error.  That 
case  was  so  elaborately  discussed  by  the  learned  judges  who  took  part 
in  it,  that  little  more  can  be  said  about  it,  than  whether,  after  careful 
consideration,  one  agrees  rather  with  the  judgments  of  the  majority, 
or  with  the  most  careful,  learned,  and  able  judgment  of  Mr.  Justice 
Coleridge.  The  decision  of  the  majority  will  be  seen,  on  a careful  con- 
sideration of  their  judgments,  to  have  been  founded  upon  two  chains  of 
reasoning.  First,  that  wherever  a man  does  an  act  which  in  law  and 
in  fact  is  a wrongful  act,  and  such  an  act  as  may,  as  a natural  and 
probable  consequence  of  it,  produce  injury  to  another,  and  which  in  the 
particular  case  does  produce  such  an  injury,  an  action  on  the  case  will 
lie.  This  is  the  proposition  to  be  deduced  from  the  case  of  Ashby  v. 
White.2  If  these  conditions  are  satisfied,  the  action  does  not  the  less  lie 
because  the  natural  and  probable  consequence  of  the  act  complained  of 
is  an  act  done  by  a third  person : or  because  such  act  so  done  by  the 
third  person  is  a breach  of  duty  or  contract  by  him,  or  an  act  illegal  on 

1 The  statement  of  facts  and  the  dissenting  opinion  of  Lord  Coleridge,  C.  J.,  are 
omitted.  — Ed. 

2 1 Sm.  L.  C.  (8th  ed.)  p.  264. 


56 


BOWEN  V.  HALL. 


[CHAP.  I. 


liis  part,  or  an  act  otherwise  imposing  an  actionable  liability  on  him. 
It  has  been  said  that  the  law  implies  that  the  act  of  the  third  party, 
being  one  which  he  has  free  will  and  power  to  do  or  not  to  do,  is  his 
own  wilful  act,  and  therefore  is  not  the  natural  or  probable  result  of 
the  defendants’  act.  In  many  cases  that  may  be  so,  but  if  the  law  is 
so  to  imply  in  every  case,  it  will  be  an  implication  contrary  to  manifest 
truth  and  fact.  It  has  been  said  that  if  the  act  of  the  third  person  is 
a breach  of  duty  or  contract  by  him,  or  is  an  act  which  it  is  illegal  for 
him  to  do,  the  law  will  not  recognize  that  it  is  a natural  or  probable 
consequence  of  the  defendant’s  act.  Again,  if  that  were  so  held  in  all 
cases,  the  law  would  in  some  refuse  to  recognize  what  is  manifestly  true 
in  fact.  If  the  judgment  of  Lord  Ellenborough  in  Vicars  v.  Wilcocks 1 
requires  this  doctrine  for  its  support,  it  is  in  our  opinion  wrong. 

We  are  of  opinion  that  the  propositions  deduced  above  from  Ashby 
v.  White  2 are  correct.  If  they  be  applied  to  such  a case  as  Lumley  v. 
Gye,  the  question  is  whether  all  the  conditions  are  by  such  a case  ful- 
filled. The  first  is  that  the  act  of  the  defendants  which  is  complained 
of  must  be  an  act  wrongful  in  law  and  in  fact.  Merely  to  persuade  a 
person  to  break  his  contract,  may  not  be  wrongful  in  law  or  fact  as  in 
the  second  case  put  by  Coleridge,  J.3  But  if  the  persuasion  be  used 
for  the  indirect  purpose  of  injuring  the  plaintiff,  or  of  benefiting  the 
defendant  at  the  expense  of  the  plaintiff,  it  is  a malicious  act  which  is 
in  law  and  in  fact  a wrong  act,  and  therefore  a wrongful  act,  and  there- 
fore an  actionable  act  if  injury  ensues  from  it.  We  think  that  it  cannot 
be  doubted  that  a malicious  act,  such  as  is  above  described,  is  a wrong- 
ful act  in  law  and  in  fact.  The  act  complained  of  in  such  a case  as 
Lumley  v.  Gye,  and  which  is  complained  of  in  the  present  case,  is 
therefore,  because  malicious,  wrongful.  That  act  is  a persuasion  by 
the  defendant  of  a third  person  to  break  a contract  existing  between 
such  third  person  and  the  plaintiff.  It  cannot  be  maintained  that  it  is 
not  a natural  and  probable  consequence  of  that  act  of  persuasion  that 
the  third  person  will  break  his  contract.  It  is  not  only  the  natural  and 
probable  consequence,  but  b}r  the  terms  of  the  proposition  which 
involves  the  success  of  the  persuasion,  it  is  the  actual  consequence. 
Unless  there  be  some  technical  doctrine  to  oblige  one  to  say  so,  it 
seems  impossible  to  say  correctly,  in  point  of  fact,  that  the  breach  of 
contract  is  too  remote  a consequence  of  the  act  of  the  defendants.  The 
technical  objections  alluded  to  above  have  been  suggested  as  the  con- 
sequences of  the  judgment  in  Vicars  v.  Wilcocks.1  But  that  judgment 
when  so  used  or  relied  on  seems  to  us  to  be  disapproved  in  the  opinions 
given  in  the  House  of  Lords  in  L3Tnch  v.  Knight,4  and  seems  to  us 
when  so  used  to  be  unreasonable.  In  the  case  of  Lumley  v.  Gye,  and 
in  the  present  case,  the  third  condition  is  fulfilled,  namely,  that  the  act 
of  the  defendant  caused  an  injury  to  the  plaintiff,  unless  again  it  can  be 

1 8 East,  1.  2 1 Sm.  L.  C.  (8th  ed.)  p.  264. 

8 Supra , 609.  * 9 H,  L.  C.  57 7. 


SECT.  II.] 


ASHLEY  V.  DIXON. 


57 


said  correctly  that  the  injury  is  too  remote  from  the  cause.  But  that 
raises  again  the  same  question  as  has  been  just  dismissed.  It  is  not 
too  remote  if  the  injury  is  the  natural  and  probable  consequence  of  the 
alleged  cause.  That  is  stated  in  all  the  opinions  in  Lynch  v.  Knight.1 
The  injury  is  in  such  a case  in  law  as  well  as  in  fact  a natural  and 
probable  consequence  of  the  cause,  because  it  is  in  fact  the  consequence 
of  the  cause,  and  there  is  no  technical  rule  against  the  truth  being 
recognized.  It  follows  that  in  Lumley  v.  Gye,  and  in  the  present  case, 
all  the  conditions  necessary  to  maintain  an  action  on  the  case  are 
fulfilled. 

Another  chain  of  reasoning  was  relied  on  by  the  majority  in  Lumley 
v.  Gye,  and  powerful^  combated  by  Coleridge,  J.  It  was  said  that 
the  contract  in  question  was  within  the  principle  of  the  Statute  of 
Laborers,  that  is  to  say,  that  the  same  evil  was  produced  by  the  same 
means,  and  that  as  the  statute  made  such  means  when  employed  in  the 
case  of  master  and  servant,  strictly  so  called,  wrongful,  the  common 
law  ought  to  treat  similar  means  employed  with  regard  to  parties 
standing  in  a similar  relation  as  also  wrongful.  If,  in  order  to  support 
Lumlej^  v.  G3’e,  it  had  been  necessary  to  adopt  this  proposition,  we 
should  have  much  doubted,  to  say  the  least.  The  reasoning  of  Cole- 
ridge, J.,  upon  the  second  head  of  his  judgment  seems  to  us  to  be  as 
nearly  as  possible,  if  not  quite,  conclusive.  But  we  think  it  is  not 
necessary  to  base  the  support  of  the  case  upon  this  latter  proposition. 
We  think  the  case  is  better  supported  upon  the  first  and  larger  doctrine. 
And  we  are  therefore  of  opinion  that  the  judgment  of  the  Queen’s  Bench 
Division  was  correct,  and  that  the  principal  appeal  must  be  dismissed. 

Appeal  dismissed. 


ASHLEY  v.  DIXON. 

In  the  Court  of  Appeals  of  New  York,  1872. 

{Reported,  48  N.  Y.  430.] 

Appeal  from  judgment  of  the  General  Term  of  the  Supreme  Court 
in  the  fourth  judicial  district,  affirming  a judgment  in  favor  of  plain- 
tiffs entered  upon  a verdict. 

The  action  is  brought  to  recover  damages  to  which  plaintiffs  claim 
themselves  entitled  from  the  following  facts : — 

On  the  24th  of  January,  1863,  one  Edwin  L.  Patrick,  by  agreement 
in  writing,  contracted  to  sell  and  convey  to  William  H.  McEachron, 
plaintiffs’  testator,  certain  premises  in  Washington  county,  the  deed 
to  be  delivered  April  1st,  and  purchase-money  paid  April  3d,  then 
next : On  the  10th  of  February,  1863,  McEachron  contracted  to  sell 
and  convey  the  premises  to  defendant ; deed  to  be  delivered  and  pur- 

i 9 H.  L.  C.  577. 


58 


ASHLEY  V.  DIXON. 


[CHAP.  L 

chase  money  paid  April  1st.  Subsequently,  defendant,  by  offering  a 
larger  price,  induced  Patrick  not  to  perform.  Upon  the  1st  day  of 
April,  McEachron  went  to  Patrick  to  tender  the  money  and  demand 
deed,  but  Patrick  was  absent;  a tender  and  demand  were  subse- 
quently made  and  refused.  Defendant  made  a tender  under  his  con- 
tract, and  demanded  a deed  of  McEachron  April  1st.  Upon  the  4th 
of  April,  Patrick  deeded  to  defendant.  Plaintiffs  obtained  a verdict 
for  $566.58. 

Earl,  C.  If  this  be  treated  as  an  action  to  recover  the  purchase 
price  of  the  real  estate  which  McEachron  contracted  to  sell  to  the  de- 
fendant, or  as  an  action  to  recover  the  liquidated  damages  mentioned 
in  the  contract,  the  action  must  fail,  for  the  reason  that  McEachron 
did  not  perform,  and  was  not  able  to  perform,  on  his  part. 

If  the  action  be  treated,  as  it  was  on  the  trial,  as  one  to  recover 
damages  for  a conspiracy  between  the  defendant  and  Patrick  to  de- 
fraud McEachron  out  of  his  contract  with  Patrick,  and  to  prevent  the 
performance  of  his  contract  with  the  defendant,  then  the  action  must 
fail,  because  there  was  not  sufficient  proof  of  such  a conspiracy,  and 
the  motion  to  nonsuit  the  plaintiffs  should  have  been  granted.  There 
was  no  evidence  which  would  warrant  the  jury  to  find  that  Patrick 
absented  himself  from  home,  or  refused  to  perform  his  contract  with 
McEachron,  at  the  instigation  of  the  defendant. 

But  even  if  defendant  had  induced  Patrick  not  to  perform  his  con- 
tract, that  alone  would  not  make  him  liable  to  the  plaintiffs  for  dam- 
ages. He  could  advise  and  persuade  Patrick  not  to  convey  the  land, 
under  his  contract  with  McEachron,  and  could,  by  offering  more,  in- 
duce him  to  convey  to  himself,  without  incurring  any  liability  to  Mc- 
Eachron, so  long  as  he  was  guilty  of  no  fraud  or  misrepresentation 
affecting  McEachron.  If  A.  has  agreed  to  sell  property  to  B.,  C.  may 
at  any  time  before  the  title  has  passed  induce  A.  not  to  let  B.  have 
the  property,  and  to  sell  it  to  himself,  provided  he  be  guilty  of  no 
fraud  or  misrepresentation,  without  incurring  any  liability  to  B. ; A. 
alone,  in  such  case,  must  respond  to  B.  for  the  breach  of  his  contract, 
and  B.  has  no  claim  upon  or  relations  with  C.  While,  by  the  moral 
law,  C.  is  under  obligation  to  abstain  from  any  interference  with  the 
contract  between  A.  and  B.,  yet  it  is  one  of  those  imperfect  obligations 
which  the  law,  as  administered  in  our  courts,  does  not  undertake  to 
enforce.  But  if  C.  makes  use  of  any  fraudulent  misrepresentations, 
as  to  B.,  to  induce  A.  to  violate  his  contract  with  him,  then  there  is  a 
fraud,  accompanied  with  damages,  which  gives  B.  a cause  of  action 
against  C. ; as  if  C.  fraudulently  represents  to  A.  that  B.  had  failed 
or  absconded,  or  had  declared  his  intention  not  to  sell  to  B.,  and  thus 
induces  A.  to  sell  to  another. 

Here  there  is  no  proof  of  any  fraudulent  representations  made  by 
defendant  to  induce  Patrick  to  violate  his  contract  with  the  plain- 
tiffs. 

Hence,  I can  conceive  of  no  theory,  upon  the  facts  as  they  appear 
before  us,  upon  which  this  action  can  be  maintained. 


59 


SECT.  II.]  ANGLE  V.  CHICAGO,  ETC.  KAIL  WAY  CO. 


The  judgment  must  be  reversed  and  new  trial  granted,  costs  to 
abide  event. 


Judgment  reversed. 


ANGLE  v.  CHICAGO,  ETC.  E AIL  WAY  CO. 

In  the  Supreme  Court  of  the  United  States,  1894. 

[ Reported  151  U.  S.  1.1] 

This  was  an  appeal  from  a decree  of  the  circuit  court  of  the  United 
States  for  the  Western  District  of  Wisconsin  dismissing  plaintiff’s 
bill.  The  bill  was  filed  on  the  23d  of  May,  1888,  against  the  Chicago, 
Portage  and  Superior  Eailway  Company,  the  Chicago,  St.  Paul,  Min- 
neapolis and  Omaha  Eailway  Company,  and  the  Farmers’  Loan  and 
Trust  Company. 

Mr.  Justice  Brewer. 

That  which  attracts  notice  on  even  a casual  reading  of  the  bill  — 
the  truth  of  all  the  allegations  in  which  must  be  taken,  upon  this  re- 
cord, to  be  admitted  by  the  demurrer  — is  the  fact  that,  while  Angle 
was  actually  engaged  in  executing  a contract  which  he  had  with  the 
Portage  Company  — a contract  whose  execution  had  proceeded  so  far 
that  its  successful  completion  within  the  time  necessary  to  secure  to 
the  Portage  Company  its  land  grant  was  assured,  and  when  neither 
he  nor  the  Portage  Company  was  moving  or  had  any  disposition  to 
break  that  contract  or  stop  the  work  — through  the  direct  and  active 
efforts  of  the  Omaha  Company  the  performance  of  that  contract  was 
prevented,  the  profits  which  Angle  would  have  received  from  a com- 
pletion of  the  contract  were  lost  to  him,  and  the  land  grant  to  the 
Portage  Company  was  wrested  from  it. 

That  there  were  both  wrong  and  loss  is  beyond  doubt.  And  as  said 
by  Croke,  J.,  in  Baily  v.  Merrell,  3 Bulst.  94,  95,  “ damage  without 
fraud  gives  no  cause  of  action ; but  where  these  two  do  concur  and 
meet  together,  there  an  action  lieth.”  The  Portage  Company  held 
a land  grant  worth  four  millions  of  dollars.  It  had  contracted  for  the 
construction  of  its  road,  such  construction  to  be  completed  in  time  to 
perfect  its  title  to  the  land.  The  contract  had  been  so  far  executed 
that  its  full  completion  within  the  time  prescribed  was  assured.  Ex- 
cept through  some  wrongful  interference,  it  was  reasonably  certain 
that  everything  would  be  carried  out  as  thus  planned  and  arranged. 

At  this  time  the  Omaha  Company,  which  was  a rival  in  some  re- 
spects, and  which  had  located  a line  parallel  and  contiguous  to  the  line 
of  the  Portage  Company,  interferes,  and  interferes  in  a wrongful  way. 
It  bribes  the  trusted  officers  of  the  Portage  Company  to  transfer  the 
entire  outstanding  stock  into  its  hands,  or  at  least  place  it  under  its 
control.  Beiag  thus  the  only  stockholder,  it  induces  the  general  man- 
l This  case  is  much  abridged.  — Ed. 


60 


ANGLE  V.  CHICAGO,  ETC.  RAILWAY  CO.  [CHAP.  I. 

ager  to  withdraw  the  several  engineering  corps,  whose  presence  was 
necessary  for  the  successful  carrying  on  of  the  work  of  constructing 
the  road ; to  give  such  notice  as  to  result  in  the  seizure  of  all  the 
tools  and  supplies  of  the  contractor  and  the  company,  and  the  dis- 
persion of  all  laborers  employed.  To  prevent  an}?-  action  by  the  faith- 
ful officers  of  the  Portage  Company,  it  wrongfully  obtains  an  injunc- 
tion tying  their  hands.  In  the  face  of  this  changed  condition  of 
affairs  the  company,  which  had  negotiated  with  the  Portage  Company 
and  was  ready  to  advance  it  money,  surrendered  the  one  hundred 
thousand  of  the  bonds,  and  abandoned  the  arrangement.  By  false 
representations  to  the  legislature  as  to  the  facts  of  the  case,  it  per- 
suaded that  body  to  revoke  the  grant  to  the  Portage  Company  and 
bestow  the  lands  upon  itself. 

That  this  was  a wrongful  interference  on  the  part  of  the  Omaha 
Company,  and  that  it  resulted  directly  in  loss  to  the  contractor  and  to 
the  Portage  Company,  is  apparent.  It  is  not  an  answer  to  say  that 
there  was  no  certainty  that  the  contractor  would  have  completed  his 
contract,  and  so  earned  these  lands  for  the  Portage  Company.  If 
such  a defence  were  tolerated,  it  would  always  be  an  answer  in  case 
of  any  wrongful  interference  with  the  performance  of  a contract,  for 
there  is  always  that  lack  of  certainty.  It  is  enough  that  there  should 
be,  as  there  was  here,  a reasonable  assurance,  considering  all  the  sur- 
roundings, that  the  contract  would  be  performed  in  the  manner  and 
within  the  time  stipulated,  and  so  performed  as  to  secure  the  land  to 
the  company.  Reversed,  and  the  case  remanded  with  instructions  to 
overrule  the  demurrer. 

Unfair  Competition  by  Inducement  of  Breach  of  Contract.  — Exchange  Co.  v. 
Gregory , 1896,  1 Q.  B.  347;  Angle  v.  R.  R.,  151  U.  S.  1;  Heaton  Co.  v.  HicJc,  52  Fed.  667; 
R.  R.  v.  McConnell,  82  Fed.  65;  May  v.  Woods,  172  Mass.  11;  Detz  v.  Winfree , 80  Tex. 
400;  accord  Boyson  v.  Thorne,  98  Cal.  578;  Chambers  v.  Baldwin,  91  Ky.  158;  Land  Co. 
v.  Commission  Co.,  139  Mo.  439;  Ashley  v.  Dixon,  48  N.  Y.  430  contra.  — Ed. 


SECT.  II.] 


BLOFELD  V.  PAYNE. 


61 


(2)  The  Customer  Not  Under  Contract. 

(a)  FRAUD. 

BLOFELD  v.  PAYNE  and  Another. 

In  the  King’s  Bench,  January  12,  1833. 

[Reported  in  4 Barnewall  Sp  Adolphus,  410.] 

Case.  The  declaration  stated  that  the  plaintiff  was  the  inventor  and 
manufacturer  of  a metallic  hone  for  sharpening  razors,  &c.,  which  hone 
he  was  accustomed  to  wrap  up  in  certain  envelopes  containing  directions 
for  the  use  of  it,  and  other  matters  ; and  that  the  said  envelopes  were 
intended,  and  served,  to  distinguish  the  plaintiff’s  hones  from  those  of  all 
other  persons  ; that  the  plaintiff  enjo3’ed  great  reputation  for  the  good 
quality  of  his  hones,  and  made  great  profit  by  the  sale  thereof ; that  the 
defendants  wrongfully  and  without  his  consent  caused  a quantity  of 
metallic  hones  to  be  made  and  wrapped  in  envelopes  resembling  those 
of  the  plaintiff,  and  containing  the  same  words,  thereby  denoting  that 
they  were  of  his  manufacture,  which  hones  the  defendants  sold  so 
wrapped  up  as  aforesaid,  as  and  for  the  plaintiff’s,  for  their  own  gain, 
whereby  the  plaintiff  was  prevented  from  disposing  of  a great  number 
of  his  hones,  and  they  were  depreciated  in  value  and  injured  in  reputa- 
tion, those  sold  by  the  defendants  being  greatly  inferior.  Plea,  the 
general  issue.  At  the  trial  before  Denman,  C.  J.,  at  the  sittings  in  Lon- 
don after  last  term,  it  appeared  that  the  defendants  had  obtained  some 
of  the  plaintiff’s  wrappers,  and  used  them  as  stated  in  the  declaration  ; 
but  no  proof  was  given  of  any  actual  damage  to  the  plaintiff.  The 
questions  left  by  his  Lordship  to  the  jury  were,  first,  whether  the  plain- 
tiff was  the  inventor  or  manufacturer?  and,  secondly,  whether  the 
defendants’  hones  were  of  inferior  quality  ? but  he  stated  to  them  that 
even  if  the  defendants’  hones  were  not  inferior,  the  plaintiff  was  entitled 
to  some  damages,  inasmuch  as  his  right  had  been  invaded  by  the  fraud- 
ulent act  of  the  defendants.  The  jury  found  for  the  plaintiff,  with  one 
farthing  damages,  but  stated  that  they  thought  the  defendants’  hones 
were  not  inferior  to  his.  Leave  was  reserved  to  move  to  enter  a 
nonsuit. 

Barstow  now  moved  accordingly.  The  special  damage  alleged  in  the 
declaration  was  of  the  very  essence  of  the  case,  and  the  plaintiff  having 
failed  to  prove  it,  no  ground  of  action  remained.  The  whole  struggle 
between  the  parties  was,  whether  or  not  the  defendants’  hones  were 
inferior  to  the  plaintiff’s,  and  the  jury  found  that  they  were  not.  The 
declaration  was  not  supported. 

Littledale,  J.  I think  enough  was  proved  to  entitle  the  plaintiff  to 
recover.  The  act  of  the  defendants  was  a fraud  against  the  plaintiff ; 
and  if  it  occasioned  him  no  specific  damage,  it  was  still,  to  a certain 
extent,  an  injury  to  his  right  There  must  be  no  rule. 


62 


STONE  V.  CARLAN. 


[CHAP.  I. 


Taunton,  J.  I think  the  verdict  ought  not  to  be  disturbed.  The 
circumstance  of  the  defendants’  having  obtained  the  plaintiff" s wrappers, 
and  made  this  use  of  them,  entitles  the  plaintiff  to  some  damages. 

Patteson,  J.  It  is  clear  the  verdict  ought  to  stand.  The  defendants 
used  the  plaintiffs  envelope,  and  pretended  it  was  their  own  : they  had 
no  right  to  do  that,  and  the  plaintiff  was  entitled  to  recover  some  dam- 
ages in  consequence. 

Denman,  C.  J. , concurred.  Rule  refused . 


STONE  and  Others  v.  CARLAN  and  Others. 

In  the  New  York  Superior  Court,  1850. 

[Reported  in  13  Law  Reporter , 360.] 

The  important  facts  of  this  case  appear  in  the  opinion  of  the  court. 

J.  Graham , for  defendants. 

IT.  A.  Mott  and  J.  F.  Brady , for  plaintiff. 

Campbell,  J.  A motion  is  made  for  an  injunction  restraining  the 
defendants  from  using  the  names  “Irving  Hotel,”  “Irving  House,” 
“ Irving,”  &c.,  upon  their  coaches  and  upon  certain  badges  worn  by 
defendants  upon  their  arms  ~nd  hats.  The  complainants  have  an 
agreement  with  the  proprietors  of  the  Irving  House,  in  this  city,  under 
which  they  are  permitted  to  use  the  name  of  such  proprietors,  and  the 
name  of  their  hotel,  upon  their  coaches  and  the  badges  of  their  servants  ; 
the  complainants  paying  therefor  a stipulated  sum,  and  having  also 
entered  into  bonds  for  the  faithful  discharge  of  these  duties.  All  the 
porters  are  engaged  in  carrying  passengers  and  their  baggage  to  and 
from  the  hotels,  boats,  railroad  depots,  &c. 

It  was  well  remarked  by  the  Master  of  the  Rolls,  in  Croft  v.  Day, 
that  “ No  man  has  a right  to  dress  himself  in  colors,  or  adopt  and  bear 
symbols,  to  which  he  has  no  peculiar  or  exclusive  right,  and  thereby 
personate  another  person,  for  the  purpose  of  inducing  the  public  to  sup- 
pose, either  that  he  is  that  other  person,  or  that  he  is  connected  with 
and  selling  the  manufacture  of  such  other  person,  while  he  is  really 
selling  his  own.  It  is  perfectly  manifest  that  to  do  these  things  is  to 
commit  a fraud,  and  a very  gross  fraud.  I stated  upon  a former  occa- 
sion, that,  in  my  opinion,  the  right  which  any  person  may  have  to  the 
protection  of  this  court  does  not  depend  upon  any  exclusive  right  which 
he  may  be  supposed  to  have  to  a particular  name,  or  to  a particular 
form  of  words.  His  right  is  to  be  protected  against  fraud  ; and  fraud 
may  be  practised  against  him  by  means  of  a name,  though  the  person 


SECT.  II.] 


STONE  V.  CARLAN. 


63 


practising  it  maj’  have  a perfect  right  to  use^that  name,  provided  he 
does  not  accompany  the  use  of  it  with  such  other  circumstances  as  to 
effect  a fraud  upon  others.”  I entirely  concur  in  the  foregoing  views. 
The  question  is,  whether  the  defendants  have  committed  a fraud.  I can- 
not doubt  that  their  intention  was  to  mislead,  and  to  induce  travellers  to 
believe  that  they  were  servants  of  the  proprietors  of  the  Irving  House. 
This  is  a large  and  popular  hotel,  well  known  in  the  county,  and  many 
a traveller  may  wish  to  resort  to  it  on  his  arrival  in  this  city’,  who,  at 
the  same  time,  may  not  know  whether  the  carriages  of  the  proprietors 
are  painted  red  or  white,  or  whether  the  exact  designation  is  that  of 
the  Irving  House  or  Irving  Hotel.  Such  traveller  may  wish  to  intrust 
himself  and  his  baggage  to  the  servants  of  the  hotel,  feeling  that,  in 
doing  so,  he  would  be  protected  against  loss  or  damage  by  the  responsi- 
bility of  the  proprietors.  Now,  in  this  case,  it  can  hardly  be  doubted 
but  that  the  object  of  the  defendant  was  to  induce  the  belief  on  the 
part  of  the  travellers  that  they  were  the  servants  of  this  hotel.  To  in- 
duce such  belief,  it  was  not  necessary  that  the  resemblance  of  all  carriages 
and  badges  should  be  complete.  From  the  very  circumstances  of  the 
case,  it  would  not  be  necessary  to  have  a perfect  resemblance,  in  order 
to  commit  even  a gross  fraud.  It  is  not  necessary  to  go,  in  this  case, 
the  length  of  the  ordinary  cases  of  trade-marks,  though  this  case  might 
come  within  the  rules  of  those  cases.  (See  Coates  v.  Holluck.1 ) The 
false  pretences  of  the  defendants  would,  I think,  necessarih7  tend  to 
mislead.  The  defendants  have  a perfect  right  to  engage  in  a spirited 
competition  in  conveyance  of  passengers  and  their  baggage.  They  may 
employ  better  carriages  than  the  plaintiffs.  They  may  carry  for  less 
fare.  Thej7  may  be  more  active,  energetic,  and  attentive.  The  em- 
ployment is  open  to  them,  but  “ they  must  not  dress  themselves  in 
colors,  and  adopt  and  bear  sj’mbols,”  which  belong  to  others.  I had 
some  doubt,  at  the  time  of  the  argument,  whether  the  complaint  should 
not  have  been  made  by  the  proprietors  of  the  Irving  House ; but,  on 
further  reflection,  think  that  the  suit  is  well  brought.  The  plaintiffs  are 
the  real  parties  in  interest.  It  is  possible  that,  owing  to  the  general 
liability  of  the  proprietors,  as  innkeepers,  for  the  loss  of  the  property  of 
guests,  the  proprietors  might  also  be  entitled  to  an  injunction  restrain- 
ing the  defendants  from  holding  themselves  out  as  the  servants  of  the 
hotel. 

An  injunction  must  issue,  as  prayed  for,  against  all  the  defendants. 

Fraud  by  Imitation  of  Dress.  — Knott  v.  Morgan,  2 Keene,  213;  Blojield  v.  Payne, 

4 B.  & Ad.  410;  Aver  v.  Goodwin,  30  Ch.  D.  1;  Coates  v.  Merrick,  149  U.  S.  562;  Sawyer 
v.  Hubbard,  32  Fed.  388;  Fairbanks  Co.  v.  Bell  Co.,  77  Fed.  869  ; Dennison  Co.  v.  Thomas 
Co.,  94  Fed.  651;  Hires  v.  Consumers ’ Co.,  100  Fed.  809;  Awl  Co.  v.  Awl  Co.,  168  Mass. 
154;  Williams  v.  Spenser,  25  How.  Pr.  365. 


64 


BOULNOIS  V.  PEAKE. 


[CHAP.  1. 


CROFT  v.  DAY. 

In  Chancery,  1843. 

[Reported  7 Beavan , 84.1] 

[A  blacking  manufactory  had  long  been  carried  on  under  the  firm 
name  of  Day  & Martin  at  97  High  Holborn.  A person  by  the  name  of 
Day  with  one  Martin  set  up  the  same  trade  at  90^  Holborn  Hill. 
The  new  concern  marked  their  product  Day  & Martin,  upon  labels  of 
similar  style.] 

The  Master  of  the  Rolls.  The  accusation  which  is  made  against 
this  defendant  is  this:  — that  he  is  selling  goods,  under  forms  and 
symbols  of  such  a nature  and  character  as  will  induce  the  public  to 
believe  that  he  is  selling  the  goods  which  are  manufactured  at  the 
manufactory  which  belonged  to  the  testator  in  this  cause.  It  has  been 
very  correctly  said  that  the  principle  in  these  cases  is  this,  — that  no 
man  has  a right  to  sell  his  own  goods  as  the  goods  of  another.  You 
may  express  the  same  principle  in  a different  form,  and  say  that  no 
man  has  a right  to  dress  himself  in  colors  or  adopt  and  bear  symbols, 
to  which  he  has  no  peculiar  or  exclusive  right,  and  thereby  personate 
another  person,  for  the  purpose  of  inducing  the  public  to  suppose, 
either  that  he  is  that  other  person,  or  that  he  is  connected  with  and 
selling  the  manufacture  of  such  other  person,  while  he  is  really  selling 
his  own.  It  is  perfectly  manifest  that  to  do  these  things  is  to  commit 
a fraud  and  a very  gross  fraud.  I stated,  upon  a former  occasion,  that, 
in  my  opinion,  the  right  which  any  person  may  have  to  the  protection 
of  this  court  does  not  depend  upon  any  exclusive  right  which  he  may 
be  supposed  to  have  to  a particular  name,  or  to  a particular  form  of 
words.  His  right  is  to  be  protected  against  fraud,  and  fraud  may  be 
practised  against  him  by  means  of  a name,  though  the  person  practis- 
ing it  may  have  a perfect  right  to  use  that  name,  provided  he  does  not 
accompany  the  use  of  it  with  such  other  circumstances  as  to  effect  a 
fraud  upon  others. 

Injunction  granted. 


BOULXOIS  v.  PEAKE. 

In  Chancery,  1868. 

[Reported  L.  R.  13  Ch.  D.  513  note.] 

The  plaintiffs  were  sellers  of  carriages  by  auction  and  on  commis- 

Fraud  as  to  the  Seller.  — Croft  v.  Day , 7 Beav.  84;  Jurton  v.  Jurton,  42  Ch.  D. 
128;  Brewing  Co.  v.  Brewing  Co.,  1898,  1 Ch.  539;  Sawyer  Co.  v.  June  Co.,  163  U.  S.  109; 
Pillsbury  v.  Pillsbury  Co.,  64  Fed.  841;  Chaney  v.  Eoxie,  143  Mass.  502;  Meyers  v.  Buggy 
Co.,  54  Mich.  215;  Hall's  Appeal,  60  Pa.  158. 


SECT.  II.] 


REDDAWAY  V.  BANHAM. 


65 


sion,  and  carried  on  their  business  in  a part  of  the  Baker  Street 
Bazaar  (Baker  Street  and  King  Street),  where  they  had  been  estab- 
lished for  forty  years,  and  had  standing  room  for  600  carriages.  They 
had  always  used  the  title  of  “Carriage  Bazaar,”  and  headed  their 
bills  with  these  words,  and  the  allegation  in  the  bill  was  that  no  other 
establishment  in  Baker  Street  or  London  was  known  as  “ The  Carriage 
Bazaar.” 

The  defendant,  in  January,  1868,  took  the  house  No.  24  Baker 
Street,  and  before  opening  it  as  a shop  and  standing  place  for  carriages 
announced  it  on  a board  as  a “Carriage  Repository.”  In  February, 
1868,  he  had  put  up  as  the  title  of  his  shop  the  words  in  large  letters 
“ New  Carriage  Bazaar,”  and  in  his  advertisements  had  used  the  same 
title  with  the  addition  “ Opposite  Madame  Tussaud’s.” 

The  plaintiffs  moved  for  an  injunction.  Evidence  was  adduced  of 
mistakes  and  confusion  between  the  establishment  of  the  plaintiffs 
and  that  of  the  defendant  from  the  adoption  of  this  title  “ Carriage 
Bazaar.” 

Gifford,  V.  C.,  said  that  the  principle  in  these  cases  was  not  that 
the  plaintiff  had  any  property  in  the  particular  title,  but  that  he  had 
a right  to  prevent  others  from  personating  his  business  by  using  any 
such  description  as  would  lead  customers  to  suppose  they  were  trad- 
ing with  the  plaintiffs.  The  defendant  had  failed  to  satisfy  the  court 
that  he  had  any  other  motive  in  what  he  had  done  than  that  of  seek- 
ing to  gain  an  unfair  advantage  over  the  plaintiffs.  Why  did  he 
change  the  title  “ Carriage  Repository  ” into  “ Carriage  Bazaar  ? ” 
The  plaintiffs  had  established  their  case,  and  there  must  be  an  in- 
junction. 


REDDAWAY  v.  BANHAM. 

In  the  House  of  Lords,  1896. 

[Reported  1896,  A.  C.  199.1] 

[The  appellant,  Reddaway,  began  in  1879  the  manufacture  of 
“ Camel  Hair  Belting.”  It  had  a large  sale  at  home  and  abroad.  The 
respondent,  Banham,  began  the  manufacture  of  camel  hair  belting 
in  1891.  The  yarn  of  which  the  belts  of  each  party  were  made  con- 
sisted chiefly  of  camel’ s hair.  The  questions  left  to  the  jury  with  their 
answers  were  as  follows  : — ] 

Q.  1 . Does  “ Camel  Hair  Belting  ” mean  belting  made  by  the 
plaintiffs,  as  distinguished  from  belting  made  by  other  manufacturers  ? 
A.  Yes.  — Q.  2.  Or  does  it  mean  belting  of  a particular  kind  without 
reference  to  any  particular  maker  ? A.  No.  — Q.  3.  Do  the  defend- 
ants so  describe  their  belting  as  to  be  likely  to  mislead  purchasers, 

1 This  case  is  much  abridged.  — Ed. 


66 


REDDAWAY  V.  BANHAM. 


[CHAP.  I 

and  to  lead  them  to  buy  the  defendants’  belting,  as  and  for  the  belt- 
ing of  the  plaintiffs  ? A.  Yes.  — Q.  4.  Did  the  defendants  endeavor 
to  pass  off  their  goods,  as  and  for  the  goods  of  the  plaintiffs,  so  as  to 
be  likely  to  deceive  purchasers  ? A.  Yes. 

Lord  Morris.  My  Lords,  I have  felt  some  difficulty  in  concurring 
as  I do  in  the  judgment  proposed  to  be  given  in  favor  of  the  appel- 
lants by  your  Lordships,  for  it  establishes,  and  in  my  opinion  for  the 
first  time,  the  proposition  that  a trader  is  not  permitted  to  merely  tell 
truthfully  and  accurately  the  material  of  which  his  goods  are  made. 
I find  myself  coerced,  however,  to  a conclusion  against  the  respond- 
ents by  the  finding  of  the  jury,  which  amounts  to  this,  “that  camel 
hair  belting  had  become  so  identified  with  the  name  of  the  appellants 
Reddaway  as  that  camel  hair  belting  had  in  the  market  obtained  the 
meaning  of  Reddaway’s  belting  ; ” and  there  was  sufficient  evidence 
given  at  the  trial  to  support  that  finding  of  the  jury.  That  finding 
establishes  as  a fact  that  the  use  of  the  words  “ camel  hair  belting  ” 
simpliciter  deceives  purchasers,  and  it  becomes  necessary  for  the  re- 
spondents to  remove  that  false  impression  so  made  on  the  public. 
That,  to  my  mind,  is  obviously  done  when  the  respondents  put  promi- 
nently and  in  a conspicuous  place  on  the  article  the  statement  that 
it  was  camel  hair  belting  manufactured  by  themselves.  Having  done 
so,  they  would,  as  it  appears  to  me,  fully  apprise  purchasers  that  it 
was  not  Reddaway’s  make,  by  stating  that  it  was  their  own.  A re- 
presentation deceiving  the  public  is  and  must  be  the  foundation  of  the 
appellants’  right  to  recover ; they  are  not  entitled  to  any  monopoly  of 
the  name  “ camel  hair  belting  ” irrespective  of  its  deceiving  the  public, 
and  every  one  has  a right  to  describe  truly  his  article  by  that  name, 
provided  he  distinguishes  it  from  the  appellants’  make.  In  this  case 
the  respondents  did  not  so  distinguish  it  because  they  omitted  to  state, 
that  it  was  their  own  make.  Consequently  I concur  in  the  motion 
which  has  been  made. 

Order  appealed  from  reversed,  with  costs  here  and  below : Declared 
that  judgment  ought  to  be  entered  for  the  plaintiffs  in  the  Queen’s 
Bench  Division  for  an  injunction  restraining  the  defendants  and  each 
of  them  from  using  the  words  “ camel  hair  ” as  descriptive  of  or  in 
connection  with  belting  manufactured  by  them  or  either  of  them,  or 
belting  (not  being  of  the  plaintiffs’  manufacture)  sold  or  offered  for 
sale  by  them  or  either  of  them  without  clearly  distinguishing  such 
belting  from  the  belting  of  the  plaintiffs  ; with  this  declaration  judg- 
ment of  Collins,  J.,  in  all  other  respects  restored : Cause  remitted  to 
the  Queen’s  Bench  Decision. 

Fraud  by  Infringement  of  Trade  Designation.  — Crawshay  v.  Thompson,  4 M.  & 
G.  357;  Johnson  v.  gwing,  7 A.  C.  219;  Witherspoon  v.  Currie,  L.  R.  5 H.  L.  508;  Redda - 
way  v.  Banham,  1896,  A.  C.  199;  Birmingham  Co.  v.  Powell,  [1897]  A.  C.  710;  Walker  v. 
Alley,  B.  Grant,  Ch.  366;  Canal  Co.  v.  Clark,  13  Wall.  11;  Hilson  Co.  v.  Foster,  80  Fed. 
896;  Mossier  v.  Jacobs,  68  111.  App.  571;  Waltham  Co.  v.  U.  S.  Co.,  173  Mass.  85;  Saun « 
ders  v.  Jacobs , 20  Mo.  Anp.  96. 


SECT.  II.]  WALTHAM  WATCH  CO.  V.  UNITED  STATES  WATCH  CO.  67 


WALTHAM  WATCH  CO.  v.  UNITED  STATES  WATCH  CO. 

In  the  Supreme  Court  of  Massachusetts,  1899. 

[Reported  173  Mass.  85.] 

Bill  in  equity,  filed  October  15,  1890,  and  amended  September  22, 
1898,  to  restrain  the  use  of  the  word  “ Waltham  ” on  watches  made 
by  the  defendant,  to  the  detriment  of  the  plaintiff’s  business  as  a 
manufacturer  of  watches  in  Waltham.  Hearing  before  Knowlton, 
J.,  who,  with  the  consent  of  the  parties,  reported  the  case  for  the  con- 
sideration of  the  full  court.  The  facts  appear  in  the  opinion. 

Holmes,  J.  This  is  a bill  brought  to  enjoin  the  defendant  from 
advertising  its  watches  as  the  “ Waltham  Watch”  or  “ Waltham 
Watches,”  and  from  marking  its  watches  in  such  a way  that  the  word 
“ Waltham  ” is  conspicuous.  The  plaintiff  was  the  first  manufacturer 
of  watches  in  Waltham,  and  had  acquired  a great  reputation  before 
the  defendant  began  to  do  business.  It  was  found  at  the  hearing  that 
the  word  “Waltham,”  which  originally  was  used  by  the  plaintiff  in  a 
merely  geographical  sense,  now,  by  long  use  in  connection  with  the 
plaintiff’s  watches,  has  come  to  have  a secondary  meaning  as  a designa- 
tion of  the  watches  which  the  public  has  become  accustomed  to  asso- 
ciate with  the  name.  This  is  recognized  by  the  defendant  so  far  that 
it  agrees  that  the  preliminary  injunction,  granted  in  1890,  against  us- 
ing the  combined  words  “ Waltham  Watch  ” or  “ Waltham  Watches  ” 
in  advertising  its  watches,  shall  stand  and  shall  be  embodied  in  the 
final  decree. 

The  question  raised  at  the  hearing,  and  now  before  us,  is  whether 
the  defendant  shall  be  enjoined  further  against  using  the  word 
“Waltham,”  or  “Waltham,  Mass.,”  upon  the  plates  of  its  watches 
without  some  accompanying  statement  which  shall  distinguish  clearly 
its  watches  from  those  made  by  the  plaintiff.  The  judge  who  heard 
the  case  found  that  it  is  of  considerable  commercial  importance  to 
indicate  where  the  defendant’s  business  of  manufacturing  is  carried 
on,  as  it  is  the  custom  of  watch  manufacturers  so  to  mark  their 
watches,  but  nevertheless  found  that  such  an  injunction  ought  to 
issue.  He  also  found  that  the  use  of  the  word  “Waltham,”  in  its 
geographical  sense,  upon  the  dial,  is  not  important,  and  should  be 
enjoined. 

The  defendant’s  position  is  that,  whatever  its  intent,  and  whatever 
the  effect  in  diverting  a part  of  the  plaintiff’s  business,  it  has  a right 
to  put  its  name  and  address  upon  its  watches ; that  to  require  it  to 
add  words  which  will  distinguish  its  watches  from  the  plaintiff’s  in 
the  mind  of  the  general  public  is  to  require  it  to  discredit  them  in 
advance ; and  that,  if  the  plaintiff  by  its  method  of  advertisement  has 
associated  the  fame  of  its  merits  with  the  city  where  it  makes  its 
wares  instead  of  with  its  own  name,  that  is  the  plaintiff’s  folly,  and 


68  WALTHAM  WATCH  CO.  V.  UNITED  STATES  WATCH  CO.  [CHAP.  I. 

cannot  give  it  a monopoly  of  a geographical  name,  or  entitle  it  to  in- 
crease the  defendant’s  burdens  in  advertising  the  place  of  its  works. 

In  cases  of  this  sort,  as  in  so  many  others,  what  ultimately  is  to  be 
worked  out  is  a point  or  line  between  conflicting  claims,  each  of  which 
has  meritorious  grounds  and  would  be  extended  further  were  it  not 
for  the  other.  Boston  Ferrule  Co.  v.  Hills , 159  Mass.  147,  149,  150. 
It  is  desirable  that  the  plaintiff  should  not  lose  custom  by  reason  of 
the  public  mistaking  another  manufacturer  for  it.  It  is  desirable 
that  the  defendant  should  be  free  to  manufacture  watches  at  Wal- 
tham, and  to  tell  the  world  that  it  does  so.  The  two  desiderata  can- 
not both  be  had  to  their  full  extent,  and  we  have  to  fix  the  boundaries 
as  best  we  can.  On  the  one  hand,  the  defendant  must  be  allowed  to 
accomplish  its  desideratum  in  some  way,  whatever  the  loss  to  the 
plaintiff.  On  the  other,  we  think  the  cases  show  that  the  defendant 
fairly  may  be  required  to  avoid  deceiving  the  public  to  the  plaintiff’s 
harm,  so  far  as  is  practicable  in  a commercial  sense. 

It  is  true  that  a man  cannot  appropriate  a geographical  name,  but 
neither  can  he  a color,  or  any  part  of  the  English  language,  or  even  a 
proper  name  to  the  exclusion  of  others  whose  names  are  like  his. 
Yet  a color  in  connection  with  a sufficiently  complex  combination  of 
other  things  may  be  recognized  as  saying  so  circumstantially  that  the 
defendant’s  goods  are  the  plaintiff’s  as  to  pass  the  injunction  line. 
New  England  Awl  & Needle  Co.  v.  Marlborough  Awl  & Needle  Co .,  168 
Mass.  154,  156.  So,  although  the  plaintiff  has  no  copyright  on  the 
dictionary  or  any  part  of  it,  he  can  exclude  a defendant  from  a part 
of  the  free  field  of  the  English  language,  even  from  the  mere  use  of 
generic  words  unqualified  and  unexplained,  when  they  would  mislead 
the  plaintiff’s  customers  to  another  shop.  Reddaway  v.  Banham, 
[1896]  A.  C.  199.  So  the  name  of  a person  may  become  so  associated 
with  his  goods  that  one  of  the  same  name  coming  into  the  business 
later  will  not  be  allowed  to  use  even  his  own  name  without  distinguish- 
ing his  wares.  Brinsmead  v.  Brinsmead , 13  Times  L.  R.  3.  Redda- 
way v.  Banham , [1896]  A.  C.  199,  210.  See  Singer  Manuf.  Co.  v.  June 
Manuf.  Co .,  163  U.  S.  169,  204 ; Allegretti  Chocolate  Cream  Co.  v. 
Keller , 85  Fed.  Rep.  643.  And  so,  we  doubt  not,  may  a geographical 
name  acquire  a similar  association  with  a similar  effect.  Montgomery 
v.  Thompson,  [1891]  A.  C.  217. 

Whatever  might  have  been  the  doubts  some  years  ago,  we  think 
that  now  it  is  pretty  well  settled  that  the  plaintiff,  merely  on  the 
strength  of  having  been  first  in  the  field,  may  put  later  comers  to  the 
trouble  of  taking  such  reasonable  precautions  as  are  commerciall}7- 
practicable  to  prevent  their  lawful  names  and  advertisements  from 
deceitfully  diverting  the  plaintiff’s  custom. 

We  cannot  go  behind  the  finding  that  such  a deceitful  diversion  is 
the  effect  and  intended  effect  of  the  marks  in  question.  We  cannot 
go  behind  the  finding  that  it  is  practicable  to  distinguish  the  defend- 
ant’s watches  from  those  of  the  plaintiff,  and  that  it  ought  to  be  done. 
The  elements  of  the  precise  issue  before  us  are  the  importance  of  indi- 


WAMSUTTA  MILLS  V.  FOX. 


69 


SECT.  IL] 

eating  the  place  of  manufacture  and  the  discrediting  effect  of  distin- 
guishing words  on  the  one  side,  and  the  importance  of  preventing  the 
inferences  which  the  public  will  draw  from  the  defendant’s  plates  as 
they  now  are,  on  the  other.  It  is  not  possible  to  weigh  them  against 
each  other  by  abstractions  or  general  propositions.  The  question  is 
specific  and  concrete.  The  judge  who  heard  the  evidence  has  an- 
swered it,  and  we  cannot  say  that  he  was  wrong. 

Decree  for  the  plaintiff. 


MEDICAL  TEA  CO  v.  KIRSCHSTEIK 
In  the  Circuit  Court  of  the  United  States,  1900. 

[ Reported  101  Fed.  Rep.  580.] 

Lacombe,  Circuit  Judge.  In  view  of  the  decision  of  the  case 
against  Wilhelmina  Weber  in  the  Eastern  district,  complainant  is 
not  entitled  to  any  relief  which  will  interfere  with  the  labels  or  man- 
ner of  packing  the  goods  complained  of.  The  further  representation, 
however,  of  the  defendant,  when  selling,  that  such  tea  is  “ Weber’s 
tea,”  is  an  independent  act  not  considered  in  the  former  suit.  He  may 
sell  the  packages  which  Wilhelmina  is  allowed  to  put  up,  and  which 
represent  the  goods  as  “genuine  imported  Alpine  herb  tea,  manufac- 
tured by  E.  G-.  Weber  & Co.,”  and  may  repeat  that  representation 
orally ; but,  when  he  further  represents  the  contents  to  be  “ Weber’s 
tea,”  his  statements,  as  the  affidavits  show,  tend  to  produce  a con- 
fusion of  goods,  against  which  the  public  should  be  protected.  The 
prayer  for  relief  seems  to  be  broad  enough  to  warrant  an  injunction 
against  selling  any  preparation,  not  manufactured  by  complainant, 
upon  the  representation  that  it  is  “ Weber’s  tea.”  To  that  extent  the 
motion  is  granted ; in  all  other  respects,  it  is  denied. 


WAMSUTTA  MILLS  v.  FOX. 

In  the'  Circuit  Court  of  the  United  States,  1892. 

[ Reported  49  Fed.  Rep.  141.] 

In  equity.  Bill  in  equity  by  the  Wamsutta  Mills  against  Moses 

Fraud  by  Substitution  op  Goods. — Barnet  v.  Leuchars , 13  L.  T.  495  ; Saxlehnerv. 
Eisener,  88  Fed.  61;  Medical  Tea  Co.  v . Kirchstein,  101  Fed.  580;  Avery  v.  Merkle , 81  Ky. 
75;  Stonebrecker  v.  Stonebrecker,  33  Md.  252;  Moroe  v.  Smith,  13  N.  Y.  S.  708.  — Ed. 


70 


WAMSUTTA  MILLS  V.  FOX. 


[CHAP.  I. 


Fox,  to  restrain  defendant  from  advertising  and  selling  articles  as 
made  from  muslin  manufactured  by  defendant,  which  were,  in  fact, 
made  from  inferior  muslin.  Motion  for  temporary  injunction. 
Granted. 

Shipman,  District  Judge.  This  is  a bill  in  equity  to  restrain  the 
defendant  from  advertising  and  selling  shirts,  made  from  inferior  cot- 
ton shirtings,  as  made  from  Wamsutta  cotton,  upon  the  ground  that 
the  cotton  shirting  manufactured  by  the  plaintiff,  and  known  as  and 
generally  called  “ Wamsutta  cotton,”  has  acquired  a well-known,  widely 
extended,  and  high  reputation,  and  extensive  sales  throughout  the 
country ; and  that  the  sale  of  an  inferior  article  under  that  name,  and 
the  untrue  assertion  by  advertisements,  and  otherwise,  that  the  inferior 
cotton  shirting  is  Wamsutta  cotton,  injure  the  plaintiff’s  reputation, 
the  good  will,  and  the  profits  of  its  business.  The  present  hearing  is 
upon  a motion  for  temporary  injunction. 

'The  allegations  of  the  bill  in  regard  to  the  high  and  general  reputa- 
tion of  the  cotton  shirting  manufactured  by  the  plaintiff,  and  generally 
called  “ Wamsutta,”  are  not  denied.  It  appears  from  the  affidavits  that 
the  defendant  is  a large  retail  dry-goods  merchant  in  Hartford,  whose 
business  is  divided  into  departments,  and  that  one  of  his  employes  is 
the  head  of  the  men’s  furnishing  goods  department.  In  accordance 
with  a not  unusual  custom  among  merchants  of  this  class,  the  prices  of 
the  odd  lots  on  hand  were  reduced  after  the  1st  of  January,  and  were 
advertised,  by  an  extensive  advertisement,  to  be  sold  at  these  low  prices 
during  the  week  beginning  January  4, 1892.  Among  men’s  furnishing 
goods  there  were  advertised  “ Men’s  Laundered  Shirts,  Wamsutta  cot- 
ton, 67c.,  value  $1.00.  Men’s  Night-Shirts,  Wamsutta  cotton,  47c., 
value  75c.”  This  part  of  the  advertisement  was  prepared  by  the  head 
of  said  department,  without  the  knowledge  of  Fox,  who  did  not  read  it. 
Affidavits  are  produced  from  three  persons,  who  bought  at  the  defend- 
ant’s store,  in  response  to  this  advertisement,  four  night-shirts  and  one 
laundered  shirt,  all  which  were  expressly  represented  by  the  salesman 
in  attendance  to  be  Wamsutta  cotton.  The  clerk  said  he  would  warrant 
the  laundered  shirt  to  be  Wamsutta  cotton,  and,  at  the  request  of  the 
buyer,  inserted  “ Warn.”  in  the  bill  of  the  goods.  These  shirts  were  all 
made  of  greatly  inferior  goods,  which  were  not  the  manufacture  of  the 
plaintiff.  The  defendant’s  affidavit  states  that  he  knew  nothing  of  the 
untrue  representations,  that  they  were  made  without  his  orders,  that  his 
attention  was  first  called  to  their  existence  by  the  motion  papers  in  this 
case,  when  he  forthwith  ordered  the  sales  to  be  stopped,  and  that  his 
general  orders  to  his  clerks  have  been  to  exercise  all  possible  care,  and 
not  to  misrepresent  the  origin  of  any  article.  The  head  of  the  depart- 
ment says,  in  his  affidavit,  that  there  were  laundered  shirts  on  hand, 
stamped  “ Wamsutta  muslin,”  which  were  made  of  Wamsutta  cotton, 
and  were  marked  down  to  67  cents,  and  that  the  advertisement  referred 
to  these  shirts,  and  to  no  others ; and  that,  in  the  advertisement  in  re- 
gard to  the  night-shirts,  he  made  a mistake,  innocently,  and  without 


SECT.  II.] 


SINGER  MFG.  CO.  V.  JUNE  MFG.  CO. 


71 


intention  to  misrepresent ; that  the  sales  of  these  shirts  were  stopped 
on  January  16th,  when  the  papers  were  served.  Between  the  2d  and 
16th  of  January,  25  laundered  shirts  were  sold,  some  of  them  made 
of  Wamsutta  cotton,  and  31  night-sliirts  were  sold.  The  conduct  of 
these  persons  cannot  be  defended.  The  motion  is  granted. 


PONTEFACT  v.  ISENBERGER. 

In  the  Circuit  Court  of  New  York,  1900. 

[. Reported  106  Federal  Reporter,  499.] 

Wheeler,  District  Judge.  This  cause  has  been  submitted  upon  an 
agreed  statement  of  facts.  It  shows  that  the  plaintiffs  have  the  sole 
right  to  the  use  of  the  trade-mark  “ Golden  Wedding,”  as  applied  to 
the  whisky  of  their  production,  and  that  the  defendant  has  refilled 
the  plaintiffs’  barrels  carrying  the  trade-mark,  to  palm  off  his  product 
as  that  of  the  plaintiffs.  The  plaintiffs  are,  therefore,  entitled  to  a 
decree  according  to  the  terms  of  the  stipulation.  Decree  for  plaintiffs 
for  $350,  according  to  stipulation. 


SINGER  COMPANY  v.  JUNE  COMPANY. 

In  the  Supreme  Court  of  the  United  States,  1896. 

[Reported  163  U.  S.  169.1] 

Bill  for  an  injunction  restraining  defendants  from  manufacturing 
sewing  machines  like  those  of  the  plaintiffs  and  selling  them  as 
“ Singer  ” machines. 

Mr.  Justice  White,  after  stating  the  facts  : — 

The  public  having  the  right  on  the  expiration  of  the  patent  to  make 
the  patented  article  and  to  use  its  generic  name,  to  restrict  this  use, 
either  by  preventing  its  being  placed  upon  the  articles  when  manu- 
factured, or  by  using  it  in  advertisements  or  circulars,  would  be  to 
admit  the  right  and  at  the  same  time  destroy  it.  It  follows,  then, 
that  the  right  to  use  the  name  in  every  form  passes  to  the  public  with 
the  dedication  resulting  from  the  expiration  of  the  patent. 

The  result,  then,  of  the  American,  the  English,  and  the  French 
doctrine  universally  upheld  is  this,  that  where,  during  the  life  of  a 
monopoly  created  by  a patent,  a name,  whether  it  be  arbitrary  or  be 
that  of  the  inventor,  has  become,  by  his  consent,  either  express  or 
tacit,  the  identifying  and  generic  name  of  the  thing  patented,  this 

1 This  case  is  abridged.  — Ed. 


72 


COATS  V.  MERRICK  THREAD  CO. 


[chap.  I. 

name  passes  to  the  public  with  the  cessation  of  the  monopoly  which 
the  patent  created.  Where  another  avails  himself  of  this  public  dedi- 
cation to  make  the  machine  and  use  the  generic  designation,  he  can 
do  so  in  all  forms,  with  the  fullest  liberty,  by  affixing  such  name  to 
the  machines,  by  referring  to  it  in  advertisements  and  by  other  means, 
subject,  however,  to  the  condition  that  the  name  must  be  so  used  as 
not  to  deprive  others  of  their  rights  or  to  deceive  the  public,  and, 
therefore,  that  the  name  must  be  accompanied  with  such  indications 
that  the  thing  manufactured  is  the  work  of  the  one  making  it,  as  will 
unmistakably  inform  the  public  of  that  fact. 

The  right  to  use  the  word  “ Singer,”  which  caused  the  imitative 
infringement  in  the  device,  being  lawful,  it  is  plain  that  the  infringe- 
ment only  resulted  from  the  failure  to  plainly  state  along  with  the 
use  of  that  word  the  source  of  manufacture,  and  therefore  this  branch 
of  the  question  is  covered  by  the  same  legal  principle  by  which  we 
have  determined  the  other. 

Decree  requiring  unmistakable  specification  of  the  manufacturer. 


COATS  v.  MERRICK  THREAD  COMPANY. 

In  the  Supreme  Court  of  the  United  States,  1893. 

[. Reported  149  U.  S.  562.1] 

Mr.  Justice  Brown,  after  stating  the  case  : 

The  controversy  between  the  two  parties  then  is  reduced  to  the 
single  question  whether,  comparing  the  two  designs  upon  the  main 
or  upper  end  of  the  spool,  there  is  such  resemblance  as  to  indicate  an 
intent  on  the  part  of  defendants  to  put  off  their  thread  upon  the  pub- 
lic as  that  of  the  plaintiffs,  and  thus  to  trade  upon  their  reputation. 
There  can  be  no  question  of  the  soundness  of  the  plaintiffs’  propo- 
sition that,  irrespective  of  the  technical  question  of  trade-mark,  the 
defendants  have  no  right  to  dress  their  goods  up  in  such  manner  as  to 
deceive  an  intending  purchaser,  and  induce  him  to  believe  he  is  buy- 
ing those  of  the  plaintiffs.  Rival  manufacturers  may  lawfully  com- 
pete for  the  patronage  of  the  public  in  the  quality  and  price  of  their 
goods,  in  the  beauty  and  tastefulness  of  their  enclosing  packages,  in 
the  extent  of  their  advertising,  and  in  the  employment  of  agents,  but 
they  have  no  right,  by  imitative  devices,  to  beguile  the  public  into 
buying  their  wares  under  the  impression  they  are  buying  those  of 
their  rivals. 

It  will  be  seen  that  in  both  devices  there  is  a paper  label,  circular 
in  form,  much  smaller  than  the  head  of  the  spool,  containing,  in  black 
letters  upon  a gilt  ground,  the  name  of  the  manufacturer,  the  number 
of  the  thread,  and  the  words  “ Best  Six  Cord,”  arranged  in  circular 

1 This  case  is  abridged.  — Ed. 


73 


SECT.  II.]  NEW  YORK  CEMENT  CO.  V.  COPLAY  CEMENT  CO. 

form  to  correspond  with  the  shape  of  the  label.  Around  this  label  in 
each  case  is  a peripheral  border  of  natural  wood,  having  the  number 
of  the  thread  embossed  upon  such  periphery.  The  differences  are  less 
conspicuous  than  the  general  resemblance  between  the  two.  At  the 
same  time  they  are  such  as  could  not  fail  to  impress  themselves  upon 
a person  who  examined  them  with  a view  to  ascertain  who  was  the 
real  manufacturer  of  the  thread.  Plaintiffs’  label  contains  the  words 
“ J.  & P.  Coats,  Best  Six  Cord  ” in  a gilt  band  around  the  border,  and 
in  the  centre  the  symbol  “ 200  Yds.”  and  the  number  of  the  thread. 
Defendants’  label  contains  the  words  “ Merrick  Thread  Co.,”  and  the 
number  of  their  thread  in  the  gilt  band  upon  the  border,  and  in  the 
centre  the  words  “ Best  Six  Cord,”  enclosing  a star.  The  periphery 
of  defendants’  spool  is  also  embossed  with  four  stars,  instead  of  the 
loops  of  the  plaintiffs,  as  well  as  the  number  of  the  thread. 

Upon  the  whole,  we  think  the  plaintiffs  have  failed  to  prove  a case 
of  unfair  competition,  or  any  illegal  attempt  of  the  defendants  to  im- 
pose their  thread  upon  the  public  as  that  of  the  plaintiffs  ; that  with 
the  right  to  use  the  black  and  gold  label  as  other  manufacturers  have 
and  continue  to  use  it,  and  with  the  same  right  to  use  the  embossed 
numerals  which  the  plaintiffs  have,  we  think  they  have  taken  all  the 
precautions  which  they  were  bound  to  take  to  prevent  a fraudulent 
imposition  of  their  thread  upon  the  public,  and  that  the  decree  of  the 
court  below  dismissing  the  bill  should,  therefore,  be 

Affirmed. 


NEW  YOKK  & E.  CEMENT  CO.  v.  COPLAY  CEMENT  CO. 

In  the  Circuit  Court  of  the  United  States,  1890. 

[Reported  44  Federal  Reporter , 276.] 

Defendants  sold  cement  which  they  denominated  “ Anchor  Eosen- 
dale  Cement,”  though  made  in  Lehigh  County,  Pa.  Complainants 
manufacture  cement  in  the  town  of  Eosendale,  N.  Y.,  along  with 
15  or  20  other  manufacturers.  Bill  for  injunction. 

Bradley,  J ustice  (after  stating  facts)  : — 

Much  evidence  has  been  taken  by  the  parties  on  this  controverted 
question ; but  the  view  of  the  case  which  we  have  taken  obviates  the 
necessity  of  examining  this  evidence.  Though  it  be  conceded  that  the 
name  “ Eosendale  Cement  ” is  understood  by  the  public  as  desig- 
nating the  place  where  it  is  made  and  comes  from,  and  that  the  de- 
fendants untruly  call  their  cement  by  that  name,  the  question  still 
remains  whether  they  can  be  prosecuted  therefor,  at  the  suit  of  a pri- 
vate party,  who  is  only  one  of  the  many  who  manufacture  cement  at 
Eosendale,  and  truly  denominate  their  cement  “ Eosendale  Cement.” 
Would  not  the  allowance  of  such  an  action  be  carrying  the  doctrine 
of  liability  for  unfair  competition  in  business  too  far  ? The  counsel 


74 


hugiies  v.  mcdonough. 


[chap.  i. 

for  the  complainants  frankly  concedes  that  the  principle  for  which  he 
contends  would  enable  any  crockery  merchant  of  Dresden  or  else- 
where, interested  in  the  particular  trade,  to  sue  a dealer  of  New  York 
or  Philadelphia  who  should  sell  an  article  as  Dresden  china  when  it  is 
not  Dresden  china.  It  seems  to  us  that  this  would  open  a Pandora’s 
box  of  vexatious  litigation.  A dry-goods  merchant,  selling  an  article 
of  linen  as  Irish  linen,  could  be  sued  by  all  the  haberdashers  of  Ire- 
land, and  all  the  linen  dealers  of  the  United  States.  No  doubt  the 
sale  of  spurious  goods,  or  holding  them  out  to  be  different  from  what 
they  are,  is  a great  evil,  and  an  immoral,  if  not  an  illegal,  act ; but 
unless  there  is  an  invasion  of  some  trade-mark,  or  trade-name,  or  pecu- 
liarity of  style,  in  which  some  person  has  a right  of  property,  the 
only  persons  legally  entitled  to  judicial  redress  wTould  seem  to  be  those 
who  are  imposed  upon  by  such  pretences. 


GLOBE-WERNICKE  CO.  v.  FRED  MACY  CO. 

Circuit  Court  of  Appeals,  United  States,  1903. 

[119  Federal  Reporter , 696. *] 

Severns,  J. : It  is  impossible  to  admit  the  claim  of  the  appellant 
to  the  extent  of  its  pretensions.  The  very  idea  of  distinguishing 
implies  that  it  cannot  be  done  by  such  universal  characteristics  as 
belong  to  other  goods  of  the  kind,  and  which  the  general  public  have 
the  undoubted  right  to  use.  Thus,  the  public  have  the  right  to  make 
bookcases  of  any  size.  From  the  nature1  of  the  requirements  they 
must  have  resemblance  in  form,  dimensions,  and  appearance.  So  no 
one  can  have  the  exclusive  privilege  of  locating  them  in  sections,  one 
above  another  or  end  to  end,  nor  in  making  them  of  any  kind  of  wood 
or  metal  as  he  chooses,  nor  in  the  style  or  in  the  finish  of  his  work, 
unless  it  is  peculiar  and  out  of  the  ordinary.  Upon  the  claim  made 
for  the  appellant,  it  would  be  impossible,  without  invading  the  com- 
plainant’s right,  to  construct  and  sell  a bookcase  having  the  most 
desirable  characteristics. 


hughes  v.  McDonough. 

Supreme  Court,  New  Jersey,  1881. 

[ Reported  43  New  Jersey , 459.] 

Declaration  that  plaintiff,  a blacksmith,  shod  a mare  for  one  Van 
Riper ; that  defendant  maliciously  to  injure  plaintiff  did  mutilate  the 
work  done  upon  the  mare  of  said  Van  Riper,  without  knowledge 
1 This  case  is  abridged.  — Ed. 


SECT.  II.] 


hugiies  v.  McDonough, 


75 


of  the  said  Van  Riper,  by  loosing  a shoe  which  was  recently  put  on  by 
the  said  plaintiff,  so  that  if  the  mare  was  driven,  the  shoe  would  come 
off  easil}’,  and  thus  make  it  appear  that  the  said  plaintiff  was  an  unskil- 
ful and  careless  horseshoer  and  blacksmith,  and  that  the  said  mare  was 
not  shod  in  a good  and  workmanlike  manner,  and  thus  deprive  the  said 
plaintiff  of  the  patronage  and  custom  of  the  said  Van  Riper.” 

The  second  count  charges  the  defendant  with  driving  a nail  in  the 
foot  of  the  horse  of  Van  Riper,  after  it  had  been  shod  by  the  plaintiff, 
with  the  same  design  as  specified  in  the  first  count. 

The  special  damage  laid  was  the  loss  of  Van  Riper  as  a customer. 
Argued  at  June  term,  1881,  before  Beasley,  Chief  Justice,  and  Justices 
Scudder,  Knapp  and  Reed. 

For  the  plaintiff  in  error,  W.  JB.  Guild , Jr, 

For  the  defendant,  S.  Kalisch, 

The  opinion  of  the  court  was  delivered  by 

Beasley,  C.  J.  The  single  exception  taken  to  this  record  is,  that 
the  wrongful  act  alleged  to  have  been  done  by  the  defendant  does  not 
appear  to  have  been  so  closely  connected  with  the  damages  resulting 
to  the  plaintiff  as  to  constitute  an  actionable  tort.  The  contention  was, 
that  the  wrong  was  done  to  Van  Riper;  that  it  was  his  horse  whose 
shoe  was  loosened,  and  whose  foot  was  pricked,  and  that  the  immediate 
injury  and  damage  were  to  him,  and  that,  consequently,  the  damages 
of  the  plaintiff  were  too  remote  to  be  made  the  basis  of  a legal  claim. 

But  this  contention  involves  a misapplication  of  the  legal  principle, 
and  cannot  be  sustained.  The  illegal  act  of  the  defendant  had  a close 
causal  connection  with  the  hurt  done  to  the  plaintiff,  and  such  hurt  was 
the  natural  and  almost  direct  product  of  such  cause.  Such  harmful 
result  was  sure  to  follow,  in  the  usual  course  of  things,  from  the  speci- 
fied malfeasance.  The  defendant  is  conclusively  chargeable  with  the 
knowledge  of  this  injurious  effect  of  his  conduct,  for  such  effect  was 
almost  certain  to  follow  from  such  conduct,  without  the  occurrence  of 
any  extraordinary  event,  or  the  help  of  any  extraneous  cause.  The 
act  had  a twofold  injurious  aspect : it  was  calculated  to  injure  both 
Van  Riper  and  the  plaintiff;  and  as  each  was  directly  damnified,  I can 
perceive  no  reason  why  each  could  not  repair  his  losses  by  an  action. 

The  facts  here  involved  do  not,  with  respect  to  their  legal  signi- 
ficance, resemble  the  juncture  that  gave  rise  to  the  doctrine  established 
in  the  case  of  Vicars  v.  Wilcocks.1  In  that  instance  the  action  was  for 
a slander  that  required  the  existence  of  special  damage  as  one  of  its 
necessary  constituents,  and  it  was  decided  that  such  constituent  was 
not  shown  by  proof  of  the  fact  that  as  a result  of  the  defamation  the 
plaintiff  had  been  discharged  from  his  service  by  his  employer  before 
the  end  of  the  term  for  which  he  had  contracted.  The  ground  of  this 
decision  was  that  this  discharge  of  the  plaintiff  from  his  employment 
was  illegal,  and  was  the  act  of  a third  party,  for  which  the  defendant 


1 8 East,  1. 


76 


hughes  v.  McDonough. 


[chap.  i. 


was  not  responsible,  and  that,  as  the  wrong  of  the  slander  became 
detrimental  only  by  reason  of  an  independent  wrongful  act  of  another, 
the  injury  was  to  be  imputed  to  the  last  wrong,  and  not  to  that  which 
was  farther  distant  one  remove.  In  his  elucidation  of  the  law  in  this 
case,  Lord  Ellenborough  says,  alluding  to  the  discharge  of  the  plaintiff 
from  his  employment,  that  it  “ was  a mere  wrongful  act  of  the  master, 
for  which  the  defendant  was  no  more  answerable,  than  if,  in  con- 
sequence of  the  words,  other  persons  had  afterwards  assembled  and 
seized  the  plaintiff  and  thrown  him  into  a horse-pond  by  way  of  punish- 
ment for  his  supposed  transgression.”  The  class  of  cases  to  which  this 
authority  belongs,  rests  upon  the  principle  that  a man  is  responsible 
only  for  the  natural  consequences  of  his  own  misdeeds,  and  that  he  is 
not  answerable  for  detriments  that  ensue  from  the  misdeeds  of  others. 
But  this  doctrine,  it  is  to  be  remembered,  does  not  exclude  responsibility 
when  the  damage  results  to  the  party  injured  through  the  intervention 
of  the  legal  and  innocent  acts  of  third  parties  ; for,  in  such  instances, 
damage  is  regarded  as  occasioned  by  the  wrongful  cause,  and  not  at 
all  by  those  which  are  not  wrongful.  Where  the  effect  was  reasonably 
to  have  been  foreseen,  and  where,  in  the  usual  course  of  events,  it  was 
likely  to  follow  from  the  cause,  the  person  putting  such  cause  in  motion 
will  be  responsible,  even  though  there  may  have  been  many  concurring 
events  or  agencies  between  such  cause  and  its  consequences.  This 
principle  is  stated,  and  is  illustrated  by  a reference  to  a multitude  of 
decisions  in  Cooley  on  Torts,  70,  et  seq.  . . . 

The  principles  thus  propounded  must  have  a controlling  effect  in  the 
decision  of  the  question  now  before  this  court,  as  the}-  decisive^  show 
that  the  damage  of  which  the  plaintiff  complained  was  not,  in  a legal 
sense,  remote  from  the  wrongful  act.  What,  in  point  of  substance,  was 
done  by  the  defendant,  was  this : he  defamed,  by  the  medium  of  a 
fraudulent  device,  the  plaintiff  in  his  trade,  and  by  means  of  which 
defamation,  the  latter  sustained  special  detriment.  If  this  defamation 
had  been  accomplished  by  word  spoken  or  written,  or  by  signs  or  pic- 
tures, it  is  plain  the  wrong  could  have  been  remedied,  in  the  usual 
form,  by  an  action  on  the  case  for  the  slander ; and,  plainly,  no  reason 
exists  why  the  law  should  not  afford  a similar  redress  when  the  same 
injury  has  been  inflicted  by  disreputable  craft.  It  is  admitted  upon  the 
record  that  the  plaintiff  has  sustained  a loss  by  the  fraudulent  mis- 
conduct of  the  defendant ; that  such  loss  was  not  only  likely,  in  the 
natural  order  of  events,  to  proceed  from  such  misconduct,  but  that 
it  was  the  design  of  the  defendant  to  produce  such  result  by  his  act. 
Under  such  circumstances  it  would  be  strange  indeed  if  the  party  thus 
wronged  could  not  obtain  indemnification  by  an  appeal  to  the  judicial 
tribunals. 

UnfAir  Competition  by  Fraud.  — Howe  v.  McKernan , 30  Beav.  547;  Chapleau  v. 
La  Porte , 16  Rap.  Que.  189;  Lawrence  Co.  v.  Tenn.  Co.,  138  U.  S.  537;  Evans  v.  Von 
Laer,  32  Fed.  153;  Jewell  v.  Bigelow,  66111.  452;  Marsh  v.  Billings , 7 Cush.  322;  Rice  v. 
Manley , 66  N.  Y.  82.  And  add  lists  following. 


JONES  V.  LITTLER. 


77 


SECT  II. 


( b ) DISPARAGEMENT. 

(a)  OF  PERSON. 

JONES  v.  LITTLER. 

In  the  Exchequer,  January  16,  1841. 

[ Reported  in  7 Meeson  Welsby , 423.] 

Slander.  The  declaration  stated  that  the  plaintiff  was  a brewer, 
and  that  the  defendant  falsely  and  maliciously  spoke  and  published  of 
and  concerning  him  in  the  way  of  his  trade  as  a brewer  the  false, 
scandalous,  malicious,  and  defamatory  words  following:  “I’ll” 
(meaning  that  he,  the  defendant,  would)  “ bet  £5  to  £1,  that  Mr. 
Jones”  (meaning  the  plaintiff)  “was  in  a sponging-house  for  debt 
within  the  last  fortnight,  and  I can  produce  the  man  who  locked  him 
up ; the  man  told  me  so  himself.”  Whereupon  the  said  Henry  Pye 
then  asked  the  defendant,  “Do  you  mean  to  say  that  Mr.  Jones, 
brewer,  of  Rose  Hill”  (meaning  and  describing  the  plaintiff),  “has 
been  in  a sponging-house  within  this  last  fortnight  for  debt?”  and 
thereupon  the  defendant  then  replied  to  the  said  Henry  Pye,  and  the 
said  other  persons  then  present,  “ Yes,  I do.” 

The  jury  having  returned  a verdict  for  the  plaintiff,  the  court 
granted  a rule  to  show  cause  why  there  should  not  be  a new  trial,  on 
a suggestion  that  the  learned  judge  ought  to  have  left  it  as  a question 
to  the  jury  whether  the  words  were  spoken  of  the  plaintiff  in  the  way 
of  his  trade,  and  did  not. 

Parke,  B.  It  is  quite  clear  that  this  rule  ought  to  be  discharged, 
for  the  only  ground  on  which  it  was  granted  has  failed,  inasmuch  as 
the  learned  judge  did  leave  the  question  to  the  jury,  whether  the 
words  were  spoken  of  the  plaintiff  in  his  trade ; and,  indeed,  it  is 
plain  that  the  words  were  so  used,  from  the  fact  that  in  the  conver- 
sation in  question  the  plaintiff  was  spoken  of  as  a brewer.  Indepen- 
dently of  that,  however,  and  even  if  they  were  spoken  of  him  in  his 
private  character,  I think  the  case  of  Stanton  v.  Smith 1 is  an  authority 
to  show  that  the  words  would  have  been  actionable,  because  they 
must  necessarily  affect  him  in  his  trade.  It  is  there  said,  “We  were 


1 2 Ld.  Raym.  1480. 


73 


SECOR  V.  HARRIS. 


[chap.  I. 


all  of  opinion  that  such  words  spoken  of  a tradesman  must  greatly 
lessen  the  credit  of  a tradesman,  and  be  very  prejudicial  to  him,  and 
therefore  that  they  were  actionable.”  That  case  is  distinguishable 
from  Ayre  v.  Craven  and  Doyley  v.  Roberts.1  In  the  latter  of  those 
cases  the  words  were  not  spoken  of  the  plaintiff  in  his  business  of 
an  attorney  ; and  in  the  former  it  did  not  appear  in  what  manner  the 
immorality  was  connected  with  the  plaintiff’s  profession  of  a physi- 
cian ; and  it  was  possible  that  such  imputations  of  incorrect  conduct, 
out  of  the  line  of  their  respective  professions,  might  not  injure  their 
professional  characters.  But  this  case  is  distinguishable,  because 
here  the  imputation  is  that  of  insolvency,  which  must  be  injurious  ; 
for  if  a tradesman  be  incapable  of  paying  all  his  debts,  whether  in  or 
out  of  trade,  his  credit  as  a tradesman,  which  depends  on  his  general 
solvency,  must  be  injured.  The  case  of  Stanton  v.  Smith,  as  it 
appears  to  me,  is  good  law,  notwithstanding  tlie  observations  of 
Coltman,  J.,  in  Doyley  v.  Roberts. 

Alderson  and  Rolfe,  BB.,  concurred.  Buie  discharged .2 


SECOR  v.  HARRIS. 

Supreme  Court,  New  York,  September,  1854. 

[ Reported  in  18  Barbour , 425.] 

Motion  by  the  plaintiff  for  a new  trial,  upon  a bill  of  exceptions. 

F.  U.  Fenno , for  the  plaintiff.  W.  B.  Hawes,  for  the  defendant. 

Mason,  J.  This  is  an  action  for  slander.  Upon  the  trial  of  the 
cause  the  plaintiff  proved  the  following  words,  which  were  also  alleged 
in  the  complaint : “ Doctor  Secor  killed  my  children.”  “ He  gave 
them  teaspoonful  doses  of  calomel,  and  they  died.”  “ Dr.  Secor 
gave  them  teaspoonful  doses  of  calomel,  and  it  killed  them  ; they  did 
not  live  long  after  they  took  it.  They  died  right  off,  — the  same 
day.”  The  plaintiff  was  proved  to  be  a practising  physician,  and  the 
evidence  shows  that  he  had  practised  in  the  defendant’s  family,  and 
had  prescribed  for  the  defendant’s  children,  and  that  the  words  were 
spoken  of  him  in  his  character  of  a physician.  The  plaintiff  claimed 
that  the  words  were  actionable,  and  that  he  was  entitled  to  have  this 
branch  of  the  case,  upon  the  words,  submitted  to  the  jury.  The 
judge  at  the  circuit  held  that  the  words  were  not  actionable,  and 


SECT.  II.] 


SECOR  V.  HARRIS. 


79 


took  them  from  the  consideration  of  the  jury.  These  words,  spoken 
of  the  plaintiff  as  a physician,  are  actionable  per  whatever  may 
be  said  upon  the  question,  whether  they  impute  a criminal  offence. 
They  do  not  impute  a criminal  offence,  unless  there  is  evidence,  aris- 
ing from  the  quantity  of  the  calomel  which  the  defendant  alleged  that 
the  plaintiff  gave  these  children,  from  which  a jury  would  be  justified 
in  finding  an  intention  to  kill  them.  One  of  them  was  three  years  of 
age,  and  the  other  one  year  and  a half.  If  the  natural  result,  which 
should  reasonably  be  expected  from  feeding  children  of  such  tender 
years  full  teaspoon  doses  of  calomel,  would  be  certain  death,  then  it 
is  not  a forced  construction  of  the  words  to  say  that  the  defendant 
intended  to  charge  the  plaintiff  with  an  intention  to  kill  these  children, 
in  giving  them  such  doses.  It  is  not  necessary,  however,  to  say  that 
the  judge  should  have  submitted  this  case  to  the  jury  upon  the  ques- 
tion, whether  the  defendant  did  not  intend  to  impute  to  the  plaintiff, 
by  these  words,  a criminal  offence.  I am  quite  inclined  to  think, 
however,  that  had  the  judge  submitted  the  case  to  the  jury  upon  the 
imputation  of  a criminal  intent  in  these  words,  and  had  the  jury  found 
that  such  intent  was  imputed,  we  should  not  be  justified  in  setting 
aside  their  verdict.  It  is  not  necessary,  however,  to  place  the  case 
upon  this  ground  ; for  it  is  certainly  slanderous  to  say  of  a physician 
that  he  killed  these  children  of  such  tender  years,  by  giving  them 
teaspoonful  doses  of  calomel.  The  charge,  to  say  the  least,  imports 
such  a total  ignorance  of  his  profession  as  to  destroy  all  confidence 
in  the  physician.  It  is  a disgrace  to  a physician  to  have  it  believed 
that  he  is  so  ignorant  of  this  most  familiar  and  common  medicine,  as 
to  give  such  quantities  thereof  to  such  young  children.  The  law  is 
well  settled  that  words  published  of  a physician,  falsely  imputing  to 
him  general  ignorance  or  want  of  skill  in  his  profession,  are  actionable, 
in  themselves,  on  the  ground  of  presumed  damage.  Starkie  on  Slan- 
der, 100,  110,  115,  10,  12;  Martyn  v.  Burlings ; 1 Bacon’s  Abr.  title 
Slander,  B;  Watson  v.  Van  Derlash;2  Tutler  v.  Alwin ; 3 Smith  v> 
Taylor ; 4 Sumner  v.  Utley.5  I am  aware  that  it  was  held,  in  the 
case  of  Poe  v.  Mondford,6  that  it  is  not  actionable  to  say  of  a physi- 
cian, “He  hath  killed  a patient  with  physic;”  and  that,  upon  the 
strength  of  the  authority  of  that  case,  it  was  decided  in  this  court  in 
Foot  v.  Brown,7  that  it  was  not  actionable  to  say  of  an  attorney  or 
counsellor,  when  speaking  of  a particular  suit,  “ He  knows  nothing 
about  the  suit ; he  will  lead  you  on  until  he  has  undone  you.”  These 
cases  are  not  sound.  The  case  of  Poe  v.  Mondford  is  repudiated  in 
Bacon’s  Abr.  as  authority,  and  cases  are  referred  to  as  holding  a 
contrary  doctrine  (vol.  ix.  pages  49,  50).  The  cases  of  Poe  v.  Mond- 
ford, and  of  Foot  v.  Brown,  were  reviewed  by  the  Supreme  Court  of 
Connecticut,  in  the  case  of  Sumner  v.  Utley,8  with  most  distinguished 

i Cro.  Eliz.  589.  2 Hetl.  69.  8 11  Mod.  R.  221. 

4 1 New  R.  196.  5 7 Conn.  R.  257.  8 Cro.  El.  620.  , 

7 8 Johns.  64.  8 7 Conn.  R.  257. 


80 


SECOR  V.  HARRIS. 


[CHAP.  I. 


ability,  and  tne  doctrine  of  those  cases  repudiated.  In  the  latter 
case  it  is  distinctly  held,  that  words  are  actionable  in  themselves, 
which  charge  a physician  with  ignorance  or  want  of  skill  in  his  treat- 
ment of  a particular  patient,  if  the  charge  be  such  as  imports  gross 
ignorance  or  unskilfulness.  To  the  same  effect  is  the  case  of  John- 
son v.  Robertson,1  where  it  was  held  that  the  following  words  spoken 
of  a physician  in  regard  to  his  treatment  of  a particular  case,  “ He 
killed  the  child  by  giving  it  too  much  calomel,”  are  actionable  in 
themselves ; and  such  is  the  case  of  Tutler  v.  Alwin,2 *  where  it  was 
held  to  be  actionable  to  say  of  an  apothecary,  that  “he  killed  a pa- 
tient with  physic.”  See  also  3 Wilson’s  R.  186 ; Bacon’s  Abr.  title 
Slander,  letter  B,  2,  vol.  ix.  page  49  (Bouv.  ed.).  The  cases  of  Poe 
v.  Mondford  and  Foot  v.  Brown  have  been  repudiated  by  the  highest 
judicial  tribunal  in  two  of  the  American  States,  while  the  case  of  Poe  v. 
Mondford  seems  to  have  been  repudiated  in  England  ; and  I agree  with 
Clinch,  J.,  that  the  reason  upon  which  that  case  is  decided  is  not  ap- 
parent. I do  not  go  the  length  to  say  that  falsehood  may  not  be  spoken 
of  a physician’s  practice,  in  a particular  case,  without  subjecting  the 
party  to  this  action.  A physician  may  mistake  the  symptoms  of  a pa- 
tient, or  may  misjudge  as  to  the  nature  of  his  disease,  and  even  as  to  the 
powers  of  medicine,  and  yet  his  error  may  be  of  that  pardonable  kind 
that  will  do  him  no  essential  prejudice,  because  it  is  rather  a proof  of 
human  imperfection  than  of  culpable  ignorance  or  unskilfulness  ; and 
where  charges  are  made  against  a physician  that  fall  within  this  class 
of  cases,  they  are  not  actionable,  without  proof  of  special  damages.8 
7 Conn.  R.  257.  It  is  equally  true,  that  a single  act  of  a physician 
may  evince  gross  ignorance,  and  such  a total  want  of  skill,  as  will 
not  fail  to  injure  his  reputation,  and  deprive  him  of  general  confi- 
dence. When  such  a charge  is  made  against  a physician,  the  words 
are  actionable  per  se.  7 Conn.  R.  257.  The  rule  may  be  laid  down 
as  a general  one  that,  when  the  charge  implies  gross  ignorance  and 
unskilfulness  in  his  profession,  the  words  are  actionable  per  se.  This 
is  upon  the  ground  that  the  law  presumes  damage  to  result,  from  the 
very  nature  of  the  charge.  The  law  in  such  a case  lays  aside  its 
usual  strictness  ; for  when  the  presumption  of  damage  is  violent,  and 
the  difficulty  of  proving  it  is  considerable,  the  law  supplies  the  de- 
fect, and,  by  converting  presumption  into  proof,  secures  the  charac- 
ter of  the  sufferer  from  the  misery  of  delay,  and  enables  him  at  once 
to  face  the  calumny  in  open  court.  Starkie  on  Slander,  581.  It 
was  well  said  by  the  learned  Chief  Justice  Hosmer,  in  Sumner  v. 
Utley,4  that,  “ As  a general  principle,  it  can  never  be  admitted  that 
the  practice  of  a physician  or  surgeon  in  a particular  case  may  be 
calumniated  with  impunity,  unless  special  damage  is  shown.  By  con- 

1 8 Porter’s  R,.  486.  2 11  Mod.  R.  221. 

8 Sumner  v.  Utley,  7 Conn.  257  ; Garr  v.  Selden,  6 Barb.  416;  Rodgers  v.  Kline,  56 

Miss.  808  ; Lvnde  v.  Johnson,  39  Hun,  5 Accord.  — Ed. 

4 7 Conn.  257. 


SECT.  II.] 


SECOR  V.  HARRIS. 


81 


fining  the  slander  to  particulars,  a man  may  thus  be  ruined  in  detail. 
A calumniator  might  follow  the  track  of  the  plaintiff,  and  begin  by 
falsely  ascribing  to  a physician  the  killing  of  three  persons  by  mis- 
management, and  then,  the  mistaking  of  an  artery  for  a vein,  and 
thus  might  proceed  to  misrepresent  every  single  case  of  his  practice, 
until  his  reputation  should  be  blasted  beyond  remedy.  Instead  of 
murdering  character  by  one  stroke,  the  victim  would  be  cut  succes- 
sively in  pieces,  and  the  only  difference  would  consist  in  the  manner 
of  effecting  the  same  result.”  It  is  true,  as  was  said  by  the 
learned  Chief  Justice  Hosmer  in  that  case,  the  redress  proposed,  on 
the  proof  of  special  damage,  is  inadequate  to  such  a case.  Much 
time  may  elapse  before  the  fact  of  damage  admits  of  any  evidence ; 
and  then  the  proof  will  always  fall  short  of  the  mischief.  In  the 
mean  time  the  reputation  of  the  calumniated  person  languishes  and 
dies ; and  hence,  as  we  have  before  said,  the  presumption  of  damage 
being  violent,  and  the  difficulty  of  proving  it  considerable,  the  law 
supplies  the  defect  by  converting  presumption  of  damage  into  proof  : 
Starkie  on  Slander,  581  ; in  other  words,  the  law  presumes  that  dam- 
ages result  from  the  speaking  of  the  words.  In  the  case  under 
consideration,  the  words  proved  impute  to  the  plaintiff  such  gross 
ignorance  of  his  profession,  if  nothing  more,  as  would  be  calculated 
to  destroy  his  character  wherever  the  charge  should  be  credited. 
It  would  be  calculated  to  make  all  men  speak  out  and  say,  as  did 
the  witness  Richard  Morris,  “ that  it  was  outrageous,  and  the  plain- 
tiff ought  not  to  be  permitted  to  practise.”  The  law  will  therefore 
presume  damages  to  result  from  the  speaking  of  the  words,  and 
consequently  hold  the  words  actionable  in  themselves.  The  judge  at 
the  circuit  erred  in  taking  this  branch  of  the  case  from  the  considera- 
tion of  the  jury,  and  a new  trial  must  be  granted ; costs  to  abide  the 
event  of  the  action. 

Crippen,  J.,  concurred.  Shankland,  J.,  dissented. 

New  trial  granted. 


82 


HAMON  V.  FALLE. 


[CHAP.  I. 


CHARLES  HAMON  v.  JOSUE  JOSUE  GEORGE  FALLE. 

In  the  Privy  Council,  February  7,  8,  1879. 

f Reported  in  4 Appeal  Cases , 247.] 

Appeal  from  a judgment  of  the  Roval  Court  of  the  Island  of  Jersey 
(July  23,  1877). 

The  judgment  of  their  Lordships  was  delivered  by 
Sir  James  W.  Col  vile  : 1 — 

The  plaintiff  in  this  case  is  a master  mariner  holding  a certificate 
from  the  Board  of  Trade.  The  defendant  was,  when  the  action  was 
brought,  the  president  of  the  Jersey  Mutual  Insurance  Society  for 
Shipping,  and  is  sued  as  the  representative  of  that  society.  The  soci- 
ety is,  as  its  name  imports,  a mutual  insurance  society  for  shipping,  and 
is  governed  by  the  rules  which  were  put  in  as  part  of  the  evidence  be- 
fore the  court  below,  and  are  now  before  their  Lordships.  Some  of  those 
rules  will  have  to  be  more  particularly  considered  hereafter,  but  it  is 
sufficient  at  present  to  state  that  the  general  course  of  business  of  the 
society  seems  to  be  that  the  different  shipowners  who  become  members 
of  it  underwrite  each  other’s  vessels  in  a certain  proportion,  and  that  the 
insurances  effected  are  in  the  nature  of  time  policies  for  one  year. 

The  action  is  a peculiar  one.  The  effect  of  the  pleading  in  the  nature 
of  a declaration  is  as  follows  : — that  the  plaintiff  holding  the  position 
which  has  been  already  mentioned,  and  having  been  employed  as  mas- 
ter of  certain  specified  vessels,  and  in  particular  of  the  Dora,  which 
then  belonged  to  the  late  M.  Felix  Briard,  his  services  were  retained 
by  M.  James  Sebire,  the  proprietor  of  the  ship  Utysses ; that  he 
was  getting  ready  to  take  the  command  of  that  vessel  when  he  found 
that  the  insurance  society  had  intimated  to  M.  Sebire  that  if  the 
plaintiff  were  to  take  command  of  her,  the  society  would  refuse  to  con- 
tinue to  insure  her ; that  he  then  took  certain  steps  in  order  to  induce 
the  society  to  reconsider  their  resolution,  or  to  give  him  an  opportunity 
of  refuting  the  reasons  they  might  have  for  it,  but  in  vain ; that  by 
reason  of  this  proceeding  on  the  part  of  the  societ}’  he  had  lost  his 
employment,  and  that  this  arbitrary  and  vexatious  conduct  on  the  part 
of  the  society  caused  him  considerable  damage  in  depriving  him  of  his 
employment,  and  consequently  of  the  means  of  providing  for  and  main- 
taining his  famity.  And  he  prayed  that  the  conduct  of  the  society 
might  be  declared  illegal,  arbitrary,  and  vexatious,  and  that  the}7  might 
pay  the  damages  claimed  to  the  amount  of  £500. 

In  the  first  instance,  the  society  took  the  proceeding  which  is  set  out 
in  the  record,  which  is  partly  in  the  nature  of  a demurrer ; but  also  sets 
forth  the  resolutions  of  the  committee  under  which  the  telegrams  which 
had  passed  between  them  and  M.  Sebire  were  sent,  and  which  were  in 
fact  the  cause  of  the  plaintiff’s  non-engagement  as  master  of  the  vessel. 

1 The  opinion  of  the  court  is  somewhat  abridged.  — Ed. 


SECT.  II.] 


HAMON  V.  FALLE. 


83 


The  effect  of  this  pleading  was  to  submit  that  there  was  no  ground  of 
action.  The  court,  however,  considering  that  the  course  adopted  by 
the  society  had  caused  considerable  damage  to  M.  Hamon  in  prevent- 
ing him  from  following  his  profession  as  a master  mariner ; that  the 
resolutions  of  the  committee  produced  by  the  defendant  contained  no 
motif  ox  reason  to  justify  the  proceeding  which  the  committee  had  thought 
fit  to  adopt ; and  that  such  a proceeding,  if  adopted  — “ sans  cause  ou 
raison  valable”  — without  cause  or  valid  reason,  would  be  an  arbitrary 
and  vexatious  act,  that  would  give  a right  of  action  to  the  person 
who  was  subject  to  it ; decided  that  the  society  ought  to  suffer  the  con- 
sequences of  its  act,  unless  it  furnished  sufficient  grounds  or  motives 
to  justify  its  conduct.  Leave  was  given  to  appeal  to  the  full  court,  the 
court  of  greater  number ; but  the  defendants  have  never  availed  them- 
selves of  that  permission.  Mr.  Benjamin  has,  in  argument,  fairly  ad- 
mitted that  the  declaration  must  be  taken  to  disclose  a prima  facie 
cause  of  action  ; and  that  the  only  question  is  whether  the  plea  or  pre- 
tention which  the  defendants  filed  under  the  last-mentioned  order  has 
been  proved,  and  if  proved  constitutes  a valid  defence. 

That  pretention  is  to  be  found  in  the  record.  In  substance  it  pleads 
that  the  committee  of  administration  only  took  the  course  they  did  in 
consequence  of  the  information  which  they  had  received  from  sources 
respectable  in  themselves  and  worthy  of  belief,  and  which  in  the  opinion 
of  the  committee  established  that  M.  Hamon,  when  in  command  of  the 
ship  Dora,  belonging  to  Messrs.  Felix  Briard  & Co.,  had  been  guilty  of 
and  had  given  way  to  intemperance,  and  had  'conducted  himself  in  such 
a way  as  not  to  deserve  the  confidence  of  its  owners,  who  had  dismissed 
him  from  their  service ; that  in  those  circumstances,  the  committee  not 
being  able  to  have  confidence  in  M.  Hamon,  and  thinking  that  an  in- 
surance was  a purely  voluntary  act  on  their  part,  had  decided  not  to 
expose  the  society  to  the  risk  of  becoming  responsible  for  the  fate  of  a 
ship  which  would  be  placed  under  the  command  of  a man  whom  they 
had  reason  to  believe  was  addicted  to  a vice  criminal  in  any  case,  but 
still  more  so  in  the  case  of  a man  holding  the  position  of  master  of  a 
vessel ; that  having  taken  that  determination,  the  committee  confined 
themselves  to  communicating  to  M.  Sebire,  without  letting  him  know 
in  terms  the  information  which  they  had  received  on  the  subject  of 
M.  Hamon,  whom,  so  long  as  the}'  could  protect  the  interests  of  the 
society,  they  had  no  desire  to  injure.  It  further  states  that  in  support 
of  their  pretention  the  defendants  produced  the  letter  from  M.  Briard, 
which  is  to  be  found  in  the  evidence,  and  which  they  say  was  brought 
by  M.  Hamon  to  the  office  of  the  society  only  a few  days  before  the 
date  of  the  correspondence  between  M.  Sebire  and  the  committee,  and 
they  contend  that  that  letter  alone  justifies  fully  the  conduct  of  the 
society  against  Hamon,  and  that  it  was  of  a kind  and  of  a nature  to 
inspire  doubt  with  reference  to  him  and  distrust  of  him,  and  that  they 
cannot  be  bound  to  furnish  legal  proof  of  the  conduct  of  Hamon  whilst 
he  had  the  command  of  the  vessel  Dora , but  that  it  sufficed  that  they 


84  RATCLIFFE  V.  EVANS.  [CHAP.  II. 

should  have  reasonable  grounds  for  refusing  to  place  their  interest  at 
the  risk  of  the  conduct  or  acts  of  Hamon. 

The  effect  of  the  defence  thus  pleaded  is  clearly  that  the  defendants 
acted  in  good  faith  and  without  any  malice  towards  the  plaintiff,  with- 
out an}^  desire  to  injure  him,  and  in  the  honest  belief  that  the  informa- 
tion they  had  received  was  sufficient  to  justify  the  course  which  they 
took.  Their  Lordships  are  of  opinion  that  such  a defence,  if  proved,  is 
a sufficient  answer  to  the  prima  facie  cause  of  action  disclosed  by  the 
declaration.  The  finding  of  the  court  that  the  act  of  the  defendants 
would  be  arbitrary  and  vexatious',  and  that  the  defendants  would  be 
liable  for  damages  unless  they  could  show  sufficient  motives  to  justify 
what  they  did,  points  to  that  conclusion.  Their  Lordships  further 
think  that  if  the  case  is  to  be  likened  (as  in  the  argument  it  has  been) 
to  an  action  for  defamation  it  would  fall  within  the  rule  thus  laid  down 
by  Mr.  Baron  Parke  in  the  case  of  Toogood  v.  Spyring : “In  general 
an  action  lies  for  the  malicious  publication  of  statements  which  are 
false  in  fact,  and  injurious  to  the  character  of  another  (within  the  well- 
known  limits  as  to  verbal  slander) , and  the  law  considers  such  publica- 
tion as  malicious  unless  it  is  fairly  made  by  a person  in  the  discharge 
of  some  public  or  private  duty,  whether  legal  or  moral,  or  in  the  con- 
duct of  his  own  affairs  in  matters  where  his  interest  is  concerned.”  In 
the  present  case  their  Lordships  think  that  the  representation  made  by 
the  society  to  Sebire  was  clearly  one  made  in  the  conduct  of  its  own 
affairs,  and  in  matters  in  which  their  own  interest  was  concerned. 

The  plaintiff  having  been  admitted  to  appeal  in  forma  pauperis , 
there  will  of  course  be  no  order  as  to  costs. 


RATCLIFFE  v.  EVANS. 

In  the  Court  of  Appeal,  May  26,  1892. 

[ Reported  in  Law  Reports  (1892),  2 Queen's  Bench,  524.] 

Motion  to  enter  judgment  for  the  defendant,  or  for  a new  trial, 
by  way  of  appeal  from  the  judgment  entered  by  Mr.  Commissioner 
Bompas,  Q.  C.,  in  an  action  tried  with  a jury  at  the  Chester  Summer 
Assizes,  1891. 

The  statement  of  claim  in  the  action  alleged  that  the  plaintiff  had 
for  many  years  carried  on  the  business,  at  Hawarden  in  the  county  of 
Flint,  of  an  engineer  and  boiler-maker  under  the  name  of  “ Ratcliffe  & 
Sons,”  having  become  entitled  to  the  good-will  of  the  business  upon  the 
death  of  his  father,  who,  with  others,  had  formerly  carried  on  the  busi- 
ness as  “ Ratcliffe  & Sons  ; ” that  the  defendant  was  the  registered  pro- 
prietor, publisher,  and  printer  of  a weekly  newspaper  called  the  “ County 
Herald,”  circulated  in  Flintshire  and  some  of  the  adjoining  counties, 


SECT.  II.] 


RATCLIFFE  V.  EVANS. 


85 


and  that  the  plaintiff  had  suffered  damage  by  the  defendant  falsely  and 
maliciously  publishing  and  printing  of  the  plaintiff  in  relation  to  his 
business,  in  the  “County  Herald,”  certain  words  set  forth  which  im- 
ported that  the  plaintiff  had  ceased  to  cany  on  his  business  of  engineer 
and  boiler-maker,  and  that  the  firm  of  Ratcliffe  & Sons  did  not  then 
exist. 

At  the  trial  the  learned  commissioner  allowed  the  statement  of  claim 
to  be  amended  b}7  adding  that  “ by  reason  of  the  premises  the  plaintiff 
was  injured  in  his  credit  and  reputation,  and  in  his  said  business  of  an 
engineer  and  boiler-maker,  and  he  thereb}7  lost  profits  which  he  other- 
wise would  have  made  in  his  said  business.”  The  plaintiff  proved  the 
publication  of  the  statements  complained  of,  and  that  the}7  were  untrue. 
He  also  proved  a general  loss  of  business  since  the  publication ; but 
he  gave  no  specific  evidence  of  the  loss  of  any  particular  customers  or 
orders  by  reason  of  such  publication.  In  answer  to  questions  left  to 
them  by  the  commissioner,  the  jury  found  that  the  words  did  not  reflect 
upon  the  plaintiff’s  character,  and  were  not  libellous ; that  the  state- 
ment that  the  firm  of  Ratcliffe  & Sons  was  extinct  was  not  published 
bona  fide  ; and  that  the  plaintiffs  business  suffered  injury  to  the  extent 
of  £120  from  the  publication  of  that  statement.  The  commissioner, 
upon  those  findings,  gave  judgment  for  the  plaintiff,  for  £120,  with 
costs. 

The  defendant  appealed. 

Bowen  Rowlands , Q.  C.,  and  E.  H.  Lloyd , for  the  appellant. 

F.  Marshall , for  the  respondent.1  Cur . adv.  vult. 

The  following  judgment  of  the  court  (Lord  Esher,  M.  R.,  Bowen, 
and  Fry,  L.  JJ.),  was  read  by 

Bowen,  L.  J.  This  was  a case  in  which  an  action  for  a false  and 
malicious  publication  about  the  trade  and  manufactures  of  the  plaintiff 
was  tried  at  the  Chester  assizes,  with  the  result  of  a verdict  for  the 
plaintiff  for  £120.  Judgment  having  been  entered  for  the  plaintiff  for 
that  sum  and  costs,  the  defendant  appealed  to  this  court  for  a new  trial, 
or  to  enter  a verdict  for  the  defendant,  on  the  ground,  amongst  others, 
that  no  special  damage,  such  as  was  necessary  to  support  the  action, 
was  proved  at  the  trial.  The  injurious  statement  complained  of  was  a 
publication  in  the  “ County  Herald,”  a Welsh  newspaper.  It  was  treated 
in  the  pleadings  as  a defamatory  statement  or  libel ; but  this  suggestion 
was  negatived,  and  the  verdict  of  the  jury  proceeded  upon  the  view 
that  the  writing  was  a false  statement  purposely  made  about  the  manu- 
factures of  the  plaintiff,  which  was  intended  to,  and  did  in  fact,  cause 
him  damage.  The  only  proof  at  the  trial  of  such  damage  consisted, 
however,  of  evidence  of  general  loss  of  business  without  specific  proof  of 
the  loss  of  any  particular  customers  or  orders,  and  the  question  we  have 
to  determine  is,  whether  in  such  an  action  such  general  evidence  of  dam- 


1 The  arguments  of  counsel  are  omitted.  — Ed. 


86 


RATCLIFFE  V.  EVANS. 


[CHAP.  I. 


age  was  admissible  and  sufficient.  That  an  action  will  lie  for  written 
or  oral  falsehoods,  not  actionable  per  se  nor  even  defamatory,  where 
they  are  maliciously  published,  where  they  are  calculated  in  the  ordinary 
course  of  things  to  produce,  and  where  they  do  produce,  actual  dam- 
age, is  established  law.  Such  an  action  is  not  one  of  libel  or  of  slander, 
but  an  action  on  the  case  for  damage  wilfully  and  intentionally  done 
without  just  occasion  or  excuse,  analogous  to  an  action  for  slander  of 
title.  To  support  it  actual  damage  must  be  shown,  for  it  is  an  action 
which  only  lies  in  respect  of  such  damage  as  has  actually  occurred.  It 
was  contended  before  us  that  in  such  an  action  it  is  not  enough  to  allege 
and  prove  general  loss  of  business  arising  from  the  publication,  since 
such  general  loss  is  general  and  not  special  damage,  and  special  dam- 
age, as  often  has  been  said,  is  the  gist  of  such  an  action  on  the  case. 
Lest  we  should  be  led  astray  in  such  a matter  by  mere  words,  it  is 
desirable  to  recollect  that  the  term  ‘ * special  damage,”  which  is  found 
for  centuries  in  the  books,  is  not  always  used  with  reference  to  similar 
subject-matter,  nor  in  the  same  context.  At  times  (both  in  the  law  of 
tort  and  of  contract)  it  is  employed  to  denote  that  damage  arising  out 
of  the  special  circumstances  of  the  case  which,  if  properly  pleaded,  may 
be  superadded  to  the  general  damage  which  the  law  implies  in  every 
breach  of  contract  and  every  infringement  of  an  absolute  right : see 
Ashby  v.  White.1  In  all  such  cases  the  law  presumes  that  some  dam- 
age will  flow  in  the  ordinary  course  of  things  from  the  mere  invasion 
of  the  plaintiff’s  rights,  and  calls  it  general  damage.  Special  damage 
in  such  a context  means  the  particular  damage  (beyond  the  general 
damage),  which  results  from  the  particular  circumstances  of  the  case, 
and  of  the  plaintiff’s  claim  to  be  compensated,  for  which  he  ought  to 
give  warning  in  his  pleadings  in  order  that  there  may  be  no  surprise 
at  the  trial.  But  where  no  actual  and  positive  right  (apart  from  the. 
damage  done)  has  been  disturbed,  it  is  the  damage  done  that  is  the 
wrong;  and  the  expression  “special  damage,”  when  used  of  this  dam- 
age, denotes  the  actual  and  temporal  loss  which  has,  in  fact,  occurred. 
Such  damage  is  called  variously  in  old  authorities,  “express  loss,” 
“ particular  damage  : ” Cane  v.  Golding  ; 2 “ damage  in  fact,”  “ special 
or  particular  cause  of  loss  : ” Law  v.  Harwood,3  Tasburgh  v.  Da}7.4 

The  term  “ special  damage  ” has  also  been  used  in  actions  on  the 
case  brought  for  a public  nuisance,  such  as  the  obstruction  of  a river 
or  a highway,  to  denote  that  actual  and  particular  loss  which  the  plain- 
tiff must  allege  and  prove  that  he  has  sustained  beyond  what  is  sus- 
tained by  the  general  public,  if  his  action  is  to  be  supported,  such 
particular  loss  being,  as  is  obvious,  the  cause  of  action : see  Iveson 
v.  Moore,6  Rose  v.  Groves.6  In  this  judgment  we  shall  endeavor  to 
avoid  a term  which,  intelligible  enough  in  particular  contexts,  tends, 

1 2 Ld.  Raym.  938;  1 Sin.  L.  C.  9th  ed.  p.  268,  per  Holt,  C.  J. 

2 Sty.  169.  8 Cro.  Car.  140. 

4 Cro.  Jac.  484.  6 1 Ld.  Raym.  486. 

6 5 M.  & G.  613. 


SECT.  II.] 


RATCLIFFE  V.  EVANS. 


87 


when  successively  employed  in  more  than  one  context  and  with  regard 
to  different  subject-matter,  to  encourage  confusion  in  thought.  The 
question  to  be  decided  does  not  depend  on  words,  but  is  one  of  sub- 
stance. In  an  action  like  the  present,  brought  for  a malicious  falsehood 
intentionally  published  in  a newspaper  about  the  plaintiff’s  business  — 
a falsehood  which  is  not  actionable  as  a personal  libel,  and  which  is  not 
defamatory  in  itself — is  evidence  to  show  that  a general  loss  of  busi- 
ness has  been  the  direct  and  natural  result  admissible  in  evidence, 
and,  if  uncontradicted,  sufficient  to  maintain  the  action?  In  the  case 
of  a personal  libel,  such  general  loss  of  custom  may  unquestionably  be 
alleged  and  proved.  Every  libel  is  of  itself  a wrong  in  regard  of  which 
the  law,  as  we  have  seen,  implies  general  damage.  By  the  very  fact 
that  he  has  committed  such  a wrong,  the  defendant  is  prepared  for  the 
proof  that  some  general  damage  may  have  been  done.  As  is  said  by 
Gould,  J.,  in  Iveson  v.  Moore,1  in  actions  against  a wrong-doer  a more 
general  mode  of  declaring  is  allowed.  If,  indeed,  over  and  above  this 
general  damage,  further  particular  damage  is  under  the  circumstances 
to  be  relied  on  by  the  plaintiff,  such  particular  damage  must  of 
course  be  alleged  and  shown.  But  a loss  of  general  custom,  flowing 
directly  and  in  the  ordinary  course  of  things  from  a libel,  may  be 
alleged  and  proved  generally.  “It  is  not  special  damage”  — says 
Pollock,  C.  B.,  in  Harrison  v.  Pearce,2  — “ it  is  general  damage  result- 
ing from  the  kind  of  injury  the  plaintiff  has  sustained.”  So  in  Bluck 
v.  Lovering,3  under  a general  allegation  of  loss  of  credit  in  business, 
general  evidence  was  received  of  a decline  of  business  presumabl}r  due 
to  the  publication  of  the  libel,  while  loss  of  particular  customers,  not 
having  been  pleaded,  was  held  rightly  to  have  been  rejected  at  the 
trial : see  also  Ingram  v.  Lawson.4  Akin  to,  though  distinguishable 
in  a respect  which  will  be  mentioned  from,  actions  of  libel  are  those 
actions  which  are  brought  for  oral  slander,  where  such  slander  consists 
of  words  actionable  in  themselves  and  the  mere  use  of  which  constitutes 
the  infringement  of  the  plaintiff’s  right.  The  very  speaking  of  such 
words,  apart  from  all  damage,  constitutes  a wrong  and  gives  rise  to  a 
cause  of  action.  The  law  in  such  a case,  as  in  the  case  of  libel,  pre- 
sumes, and  in  theory  allows,  proof  of  general  damage.  But  slander,  even 
if  actionable  in  itself,  is  regarded  as  differing  from  libel  in  a point  which 
renders  proof  of  general  damage  in  slander  cases  difficult  to  be  made 
good.  A person  who  publishes  defamatory  matter  on  paper  or  in  print 
puts  in  circulation  that  which  is  more  permanent  and  more  easily  trans- 
missible than  oral  slander.  Verbal  defamatory  statements  may,  indeed, 
be  intended  to  be  repeated,  or  may  be  uttered  under  such  circumstances 
that  their  repetition  follows  in  the  ordinary  course  of  things  from  their 
original  utterance.  Except  in  such  cases,  the  law  does  not  allow  the 
plaintiff  to  recover  damages  which  flow,  not  from  the  original  slander, 


1 1 Ld.  Raym.  486. 

8 1 Times  L.  R.  497. 


2 32  L.  T.  (0.  S.)  298. 
4 6 Bing.  N.  C.  212. 


88 


RATCLIFFE  V.  EVANS. 


[CHAP.  I. 


but  from  its  unauthorized  repetition  : Ward  v.  Weeks,1  Holwood  v.  Hop- 
kins,2 Dixon  v.  Smith.3  General  loss  of  custom  cannot  properly  be 
proved  in  respect  of  a slander  of  this  kind  when  it  has  been  uttered 
under  such  circumstances  that  its  repetition  does  not  flow  directly  and 
naturally  from  the  circumstances  under  which  the  slander  itself  was 
uttered.  The  doctrine  that  in  slanders  actionable  per  se  general  damage 
may  be  alleged  and  proved  with  generality  must  be  taken,  therefore, 
with  the  qualification  that  the  words  complained  of  must  have  been 
spoken  under  circumstances  which  might  in  the  ordinary  course  of  things 
have  directly  produced  the  general  damage  that  has  in  fact  occurred. 
Evans  v.  Harries 4 was  a slander  uttered  in  such  a manner.  It  consisted 
of  words  reflecting  on  an  inn-keeper  in  the  conduct  of  his  business 
spoken  openly  in  the  presence  of  divers  persons,  guests  and  customers 
of  the  inn  — a floating  and  transitory  class.  The  court  held  that  gen- 
eral evidence  of  the  decline  of  business  was  rightly  receivable.  “ How,” 
asked  Martin,  B.,  “ is  a public-house  keeper,  whose  only  customers  are 
persons  passing  by,  to  show  a damage  resulting  from  the  slander,  unless 
he  is  allowed  to  give  general  evidence  of  a loss  of  custom?”  Mac- 
loughlin  v.  Welsh5  was  an  instance  of  excommunication  in  open  church. 
General  proof  was  held  to  be  rightly  admitted  that  the  plaintiff  was 
shunned  and  his  mill  abandoned,  though  no  loss  of  particular  customers 
was  shown.  Here  the  very  nature  of  the  slander  rendered  it  necessary 
that  such  general  proof  should  be  allowed.  The  defamatory  words  were 
spoken  openly  and  publicly,  and  were  intended  to  have  the  exact  effect 
which  was  produced.  Unless  such  general  evidence  was  admissible,  the 
injur}'  done  could  not  be  proved  at  all.  If,  in  addition  to  this  general 
loss,  the  loss  of  particular  customers  was  to  be  relied  on,  such  particular 
losses  would,  in  accordance  with  the  ordinary  rules  of  pleading,  have 
been  required  to  be  mentioned  in  the  statement  of  claim  : see  Ashley 
v.  Harrison.6  From  libels  and  slanders  actionable  per  se , we  pass  to 
the  case  of  slanders  not  actionable  per  se,  where  actual  damage  done  is 
the  very  gist  of  the  action.  Man}’’  old  authorities  may  be  cited  for  the 
proposition  that  in  such  a case  the  actual  loss  must  be  proved  specially 
and  with  certainty : Law  v.  Harwood.7  Many  such  instances  are  col- 
lected in  the  judgments  in  Iveson  v.  Moore,8  where,  although  there  was 
a difference  as  to  whether  the  general  rule  had  been  fulfilled  in  that 
particular  kind  of  action  on  the  case,  no  doubt  was  thrown  on  the  prin- 
ciple itself.  As  was  there  said  — in  that  language  of  old  pleaders  which 
has  seen  its  day,  but  which  connoted  more  accuracy  of  legal  thought 
than  is  produced  by  modern  statements  of  claim  — “damages  in  the 
‘ per  quod,’  where  the  ‘ per  quod’  is  the  gist  of  the  action,  should  be 
shown  certainly  and  specially.”  But  such  a doctrine  as  this  was  alwa}Ts 
subject  to  the  qualification  of  good  sense  and  of  justice.  Cases  may 


1 7 Bing.  211. 

8 5 H.  & N.  450. 

5 10  Ir.  L.  Rep.  19. 

7 Cro.  Car.  140. 


2 Cro.  Eliz.  787. 

4 1 H.  & N.  251. 

8 1 Esp.  50. 

8 1 Ld.  Raym.  486. 


SECT.  II.] 


RATCLIFFE  V.  EVANS. 


89 


here,  as  before,  occur  where  a general  loss  of  custom  is  the  natural  and 
direct  result  of  the  slander,  and  where  it  is  not  possible  to  specify  par- 
ticular instances  of  the  loss.  Hartley  v.  Herring 1 is  probably  a case  of 
the  kind,  although  it  does  not  appear  from  the  report  under  what  cir- 
cumstances, or  in  the  presence  of  whom,  the  slanderous  words  were 
uttered.  But  if  the  words  are  uttered  to  an  individual,  and  repetition 
is  not  intended  except  to  a limited  extent,  general  loss  of  custom  can- 
not be  ordinarily  a direct  and  natural  result  of  the  limited  slander: 
Dixon  v.  Smith,2  Hopwood  v.  Thorn.3  The  broad  doctrine  is  stated  in 
Buller’s  Nisi  Prius,  p.  7,  that  where  words  are  not  actionable,  and  the 
special  damage  is  the  gist  of  the  action,  saying  generally  that  several 
persons  left  the  plaintiff’s  house  is  not  laying  the  special  damage. 
Slanders  of  title,  written  or  oral,  and  actions  such  as  the  present, 
brought  for  damage  done  by  falsehoods,  written  or  oral,  about  a man’s 
goods  or  business,  are  similar  in  many  respects  to  the  last-mentioned 
class  of  slanders  not  actionable  in  themselves.  Damage  is  the  gist  of 
both  actions  alike,  and  it  makes  no  difference  in  this  respect  whether 
the  falsehood  is  oral  or  in  writing : Malachy  v.  Soper.  The  necessity 
of  alleging  and  proving  actual  temporal  loss  with  certainty  and  pre- 
cision in  all  cases  of  the  sort  has  been  insisted  upon  for  centuries : 
Lowe  v.  Harewood,4  Cane  v.  Golding,5  Tasburgh  v.  Day,6  Evans  v. 
Harlow.7  But  it  is  an  ancient  and  established  rule  of  pleading  that 
the  question  of  generality  of  pleading  must  depend  on  the  general 
subject-matter : Janson  v.  Stuart,8  Lord  Arlington  v.  Merricke,9  Grey 
v.  Friar,10  Westwood  v.  Cowne,11  Iveson  v.  Moore.12  In  all  actions 
accordingly  on  the  case  where  the  damage  actualty  done  is  the  gist 
of  the  action,  the  character  of  the  acts  themselves  which  produce  the 
damage,  and  the  circumstances  under  which  these  acts  are  done,  must 
regulate  the  degree  of  certainty  and  particularity  with  which  the  dam- 
age done  ought  to  be  stated  and  proved.  As  much  certainty  and  par- 
ticularity must  be  insisted  on,  both  in  pleading  and  proof  of  damage, 
as  is  reasonable,  having  regard  to  the  circumstances  and  to  the  nature 
of  the  acts  themselves  by  which  the  damage  is  done.  To  insist  upon 
less  would  be  to  relax  old  and  intelligible  principles.  To  insist  upon 
more  would  be  the  vainest  pedantry.  The  rule  to  be  laid  down  with 
regard  to  malicious  falsehoods  affecting  property  or  trade  is  only  an 
instance  of  the  doctrines  of  good  sense  applicable  to  all  that  branch  of 
actions  on  the  case  to  which  the  class  under  discussion  belongs.  The 
nature  and  circumstances  of  the  publication  of  the  falsehood  may 
accordingly  require  the  admission  of  evidence  of  general  loss  of  busi- 
ness as  the  natural  and  direct  result  produced,  and  perhaps  intended  to 


1 8 T.  R.  130. 

* 19  L.  J.  (C.  P.)  95. 

6 Sty.  176. 

7 5 Q.  B.  624. 

9 2 Saund.  412,  n.  4. 


u 1 Stark.  172. 


2 5 H.  & N.  450. 

4 W.  Jones,  196. 

6 Cro.  Jac.  484. 

8 1 T.  R.  754. 

15  Q.  B.  907;  see  Co.  Litt.  303  d. 

12  1 Ld.  Raym.  486. 


90 


DUDLEY  V.  BRIGGS. 


[CHAP.  I. 


be  produced.  An  instructive  illustration,  and  one  by  which  the  pres- 
ent appeal  is  really  covered,  is  furnished  by  the  case  of  Hargrave  v . 
Le  Breton,1  decided  a century  and  a half  ago.  It  was  an  example  of 
slander  of  title  at  an  auction.  The  allegation  in  the  declaration  was 
that  divers  persons  who  would  have  purchased  at  the  auction  left  the 
place  ; but  no  particular  persons  were  named.  The  objection  that  they 
were  not  specially  mentioned  was,  as  the  report  tells  us,  4 4 easily  ” 
answered.  The  answer  given  was  that  in  the  nature  of  the  transac- 
tion it  was  impossible  to  specify  names ; that  the  injury  complained  of 
was  in  effect  that  the  bidding  at  the  auction  had  been  prevented  and 
stopped,  and  that  everybody  had  gone  away.  It  had,  therefore,  become 
impossible  to  tell  with  certainty  who  would  have  been  bidders  or  pur- 
chasers if  the  auction  had  not  been  rendered  abortive.  This  case 
shows,  what  sound  judgment  itself  dictates,  that  in  an  action  for  false- 
hood producing  damage  to  a man’s  trade,  which  in  its  very  nature  is 
intended  or  reasonably  likely  to  produce,  and  which  in  the  ordinary 
course  of  things  does  produce,  a general  loss  of  business,  as  distinct 
from  the  loss  of  this  or  that  known  customer,  evidence  of  such  general 
decline  of  business  is  admissible.  In  Hargrave  v.  Le  Breton 1 it  was 
a falsehood  openly  promulgated  at  an  auction.  In  the  case  before  us 
to-day,  it  is  a falsehood  openly  disseminated  through  the  press  — prob- 
ably read,  and  possibly  acted  on,  by  persons  of  whom  the  plaintiff 
never  heard.  To  refuse  with  reference  to  such  a subject-matter  to 
admit  such  general  evidence  would  be  to  misunderstand  and  warp  the 
meaning  of  old  expressions ; to  depart  from,  and  not  to  follow,  old 
rules ; and,  in  addition  to  all  this,  would  involve  an  absolute  denial  of 
justice  and  of  redress  for  the  very  mischief  which  was  intended  to  be 
committed.  It  may  be  added  that,  so  far  as  the  decision  in  Riding  v. 
Smith  can  be  justified,  it  must  be  justified  on  the  ground  that  the 
court  (rightly  or  wrongly)  believed  the  circumstances  under  which  the 
falsehood  was  uttered  to  have  brought  it  within  the  scope  of  a similar 
principle.  In  our  opinion,  therefore,  there  has  been  no  misdirection 
and  no  improper  admission  of  evidence,  and  this  appeal  should  be  dis- 
missed with  costs.  Appeal  dismissed. 


DEAN  DUDLEY  v.  RICHARD  F.  BRIGGS. 

In  the  Supreme  Judicial  Court,  Massachusetts,  May  8,  1886. 

[ Reported  in  141  Massachusetts  Reports,  582.] 

Tort.  Writ  dated  September  18,  1885.  The  declaration  was  as 
follows : — 

44  And  the  plaintiff  says  that  he  is,  and  has  been  for  many  }Tears,  a 
compiler  and  publisher  of  directories  of  cities,  towns,  and  counties  in 


1 4 Burr.  2422. 


SECT.  II.] 


DUDLEY  V.  BRIGGS. 


91 


this  Commonwealth  and  elsewhere ; that  by  care,  attention,  skill,  and 
faithfulness,  and  after  great  labor  and  expense,  he  had  acquired  a large 
number  of  subscribers  among  business  men  and  other  people,  through- 
out the  cities  and  towns  of  Bristol  County,  and  elsewhere  in  this  Com- 
monwealth, for  4 The  Bristol  County  Directory,’  which  the  plaintiff  has 
compiled  and  published  biennially  for  many  years,  and  until  the  acts 
and  doings  of  the  defendant  hereinafter  complained  of ; that,  at  great 
labor  and  expense,  he  had  acquired  a large  and  valuable  list  of 
advertisers  in  his  said  directory,  from  whom,  as  well  as  from  the  said 
subscribers  to  said  director}^  he  obtained  a large  income,  and  would 
have  continued  to  do  so,  but  for  the  acts  and  doings  of  the  defendant 
hereinafter  alleged  and  set  forth. 

“And  the  plaintiff  says  that,  according  to  his  usual  and  ordinary 
custom  in  the  compilation  and  publication  of  the  said  4 The  Bristol 
County  Directory,’  he  would  have  compiled  and  published  the  same  in 
this  year,  a.  d.  1885,  and  he  made  his  preparations  therefor,  but  he  says 
that  the  defendant  and  his  canvassers,  and  other  servants  and  agents, 
in  order  to  injure  the  plaintiff,  and  to  deprive  him  of  the  opportunity 
of  compiling  and  publishing  said  directory  for  said  year  of  1885, 
and  thereafterwards,  and  receiving  the  gains  and  profits  therefrom,  and 
to  secure  the  same  to  the  defendant,  together  with  all  the  gains  and 
profits  arising  therefrom,  and  otherwise  to  injure  the  plaintiff  and  get 
gain,  profit,  and  advantage  to  the  defendant,  knowingly  and  wilfull}', 
falsely  and  fraudulent^,  pretended  and  represented  to  many  persons, 
and  particularly  to  the  plaintiffs  patrons,  the  advertisers  in  said  direc- 
tory and  the  subscribers  thereto  throughout  said  Bristol  County,  that 
the  plaintiff  had  gone  out  of  the  business  of  compiling  and  publishing 
said  directory,  that  the  plaintiff  had  sold  out  said  business  to  the 
defendant,  that  the  said  canvassers  and  the  defendant’s  other  servants 
and  agents  were  compiling  the  materials  for  the  plaintiff’s  director}', 
the  same  as  formerly,  and  other  false  and  fraudulent  representations 
then  and  there  made,  of  which  the  plaintiff  is  not  }Tet  fully  informed, 
and  thereby  deceitfully  and  wrongfully  induced  the  plaintiff’s  said 
patrons,  advertisers,  and  subscribers,  in  and  throughout  said  Bristol 
County,  to  give  to  the  defendant  their  advertisements  and  subscriptions, 
and  to  pay  him  instead  of  the  plaintiff  therefor. 

44  Whereas,  in  truth  and  in  fact,  the  said  representations  were  wholly 
false  and  untrue ; the  plaintiff  had  neither  gone  out  of  the  business  of 
compiling  and  publishing  the  said  directory,  as  he  had  done  for  }Tears 
before,  nor  had  he  sold  out  to  the  defendant,  nor  had  he  any  intention 
of  doing  so ; nor  were  the  defendant  and  his  canvassers,  and  other 
agents  and  servants,  compiling  the  said  directory  the  same  as  formerly 
or  for  the  plaintiff ; all  of  which  the  defendant,  as  well  as  his  said  can- 
vassers and  other  servants  and  agents,  well  knew.  And  the  defendant 
did  knowingly,  wrongfully,  injurious^,  and  deceitfully  compile  and 
publish  the  said  4 The  Bristol  County  Directory,’  for  the  year  a.  d.  1885, 
and  vend  and  sell  the  same  to  the  plaintiff’s  patrons,  advertisers,  sub- 


92 


DUDLEY  V.  BRIGGS. 


[CHAP.  I. 


scribers,  and  other  persons,  as  aforesaid.  And  the  plaintiff  says  that 
thereby  he  has  been  prevented  from  compiling,  publishing,  and  selling  his 
said  directory  this  year,  a.  d.  1885,  as  he  has  always  done  heretofore ; 
that  he  has  lost  the  great  gains  and  profits  which  he  would  otherwise  have 
made  and  received  from  the  sale  thereof,  and  from  advertisers  in  and 
subscribers  to  said  directory,  and  has  been  put  to  great  loss  and 
expense  in  preparing  for  said  compilation  and  publication,  till  he 
learned  of  the  defendant's  said  act  and  doings,  and  thereby  he  will  be 
hereafter  prevented  from  compiling  and  publishing  said  directory  except 
at  an  increased  expense  and  with  diminished  profits.” 

The  defendant  demurred  to  the  declaration,  on  the  ground  that  it  did 
not  set  forth  a legal  cause  of  action. 

The  Superior  Court  sustained  the  demurrer ; and  ordered  judgment 
for  the  defendant.  The  plaintiff  appealed  to  this  court. 

J.  C.  Coombs  and  JV.  U.  Walker , for  the  defendant. 

S.  H.  Dudley , for  the  plaintiff. 

Field,  J.  The  plaintiff  in  his  declaration  does  not  allege  that,  by 
the  acts  of  the  defendant,  he  has  been  deprived  of  the  benefit  of  any  con- 
tract he  had  made,  or  of  any  property  in  existence  and  in  his  possession, 
or  that  the  defendant  published  his  directory  for  1885  as  a directory  pre- 
pared and  published  by  the  plaintiff ; and  does  not  bring  his  case 
within  such  decisions  as  Lumley  v.  G3re,  Marsh  v.  Billings,1  Thomson 
v.  Winchester,2 *  Blofeld  v.  Payne,  Morison  v.  Salmon,8  and  Sykes  v. 
Sykes.4 

He  does  not  allege  that  he  had  any  copyright  in  the  previous  pub- 
lications which  the  publication  of  the  defendant  infringed ; and  the 
courts  of  the  Commonwealth  have  no  jurisdiction  over  infringements  of 
copyright.  If  each  publication  of  a directory  by  the  plaintiff  every  two 
years  was  a separate  publication,  then  the  plaintiff’s  declaration  amounts 
to  this,  — that  he  intended  to  publish  a directory  for  1885,  whereby  he 
expected  to  make  profits,  but,  by  reason  of  the  acts  of  the  defendant, 
he  abandoned  such  an  intention,  and  lost  the  profits  he  otherwise  would 
have  made.  But  an  intention  in  the  mind  of  the  plaintiff  to  compile 
and  publish  a directory  is  not  propert}7,  and  the  abandonment  of  such 
an  intention  is  not  a loss  of  property.  Bradley  v.  Fuller.5 

An  attempt  has  been  made  to  bring  this  case  within  what  is  called 
slander  of  goods,  manufactured  and  sold  by  another.  See  Western 
Counties  Manure  Co.  v.  Lawes  Chemical  Manure  Co.  This  implies 
that  the  plaintiff  was  engaged  in  the  business  of  making  and  selling 
directories,  and  that  the  defendant  made  statements  disparaging  the 
plaintiff’s  business.  We  think  that  the  declaration  does  not  show  that 
the  business  of  the  plaintiff,  in  publishing  a new  directory  every  two 
years,  was  a continuous  business.  The  directory  to  be  published  in 
1885  was  to  be  a new  compilation  and  publication.  From  the  nature 


i 7 Cush.  322. 

8 2 M.  & G.  385. 

6 118  Mass.  239.  j 


2 19  Pick.  214. 

* 3 B.  & C.  541, 


SECT.  II.] 


DUDLEY  V.  BRIGGS. 


93 


of  the  book,  perhaps  this  could  not  well  be  otherwise.  New  sub- 
scribers and  new  advertisements  were  to  be  obtained.  We  have  been 
shown  no  case  where  it  has  been  held  that  a false  statement  that  the 
plaintiff  had  gone  out  of  business,  or  sold  out  his  business  to  the 
defendant,  was  an  actionable  slander  of  a person  in  his  trade ; but 
upon  this  we  express  no  opinion.  It  may  be  said  that  such  statements 
tend  to  injure  a man  in  his  business,  because  they  tend  to  prevent  cus- 
tomers from  resorting  to  him  for  trade,  and  to  injure  the  value  of  the 
good-will  of  his  business.  However  this  may  be,  the  difficulty  is  in 
attaching  good-will  as  a valuable  thing  to  the  publication  every  two  years 
of  a new  directory.  Such  a directory  could  be  published  by  anybod}'. 
It  is  perhaps  a question  of  degree  whether  the  publication  by  the  plain- 
tiff had  been  so  frequent  and  regular  that  there  can  be  said  to  be 
a good-will  that  would  be  protected  in  law.  There  is  no  allegation 
of  any  continuing  contract,  express  or  implied,  of  subscribing  for,  or 
advertising  in,  the  directories,  as  a publication  periodically  issued ; 
there  is  no  allegation  of  any  place  of  business  to  which  customers 
resorted  to  purchase  directories.  Until  the  plaintiff  had  entered  upon 
the  compilation  of  the  directory  for  1885,  we  do  not  think  that  there 
was  any  business  of  publishing  a directory  for  1885  carried  on  bj^  the 
plaintiff,  or  anything  that,  for  example,  could  have  been  sold  as  a 
going  concern  by  an  assignee  in  insolvenc}’,  if  the  plaintiff  had  become 
an  insolvent  debtor.  The  cases  upon  liability  for  wrongful  interference 
with  the  business  of  another  are  largely  collected  in  Walker  v.  Cronin ; 
but  in  that  case  there  was  an  actual  business,  with  the  carrying  on  of 
which  the  defendant  wrongfully  interfered.  The  declaration  in  this  case, 
indeed,  alleges  that  the  plaintiff  made  his  preparations  for  compiling 
and  publishing  a directory  for  1885,  but  it  does  not  allege  what  those 
preparations  were,  or  that  they  were  anything  valuable.  The  averment 
that  he  ‘ 4 has  been  put  to  great  loss  and  expense  in  preparing  for  said 
compilation  and  publication,”  near  the  end  of  the  declaration,  appears 
to  be  a part  of  the  damages. 

The  plaintiff  cites  Swan  v.  Tappan  ; 1 but  there  the  declaration  was 
held  insufficient,  because  there  was  no  allegation  of  special  damage. 
The  declaration  in  the  present  case  cannot  well  be  distinguished  in  this 
respect  from  the  declaration  in  Swan  v.  Tappan,  but  we  do  not  deem  it 
necessary  to  reconsider  the  decision  in  that  case  on  this  point.  There, 
the  plaintiff  was  actually  engaged  in  selling  his  book,  which  had  already 
been  printed  and  put  upon  the  market,  and  the  action  was  the  ordinary 
action  for  the  malicious  disparagement  of  the  goods  of  another,  manu- 
factured and  kept  for  sale. 

The  plaintiff  relies  upon  Benton  v.  Pratt,2  which  perhaps  may  be 
considered  as  an  extreme  case.  See  Randall  v.  Hazelton.  In  Benton 
v.  Pratt,  Seagraves  and  Wilson,  at  Allentown,  had  orally  agreed  to  pur- 
chase of  the  plaintiff  two  hundred  hogs,  at  the  market  price,  if  delivered 


5 Cush.  104. 


a 2 Wend.  385. 


94 


BOYNTON  V.  SHAW  STOCKING  CO. 


[CHAP.  I. 


within  three  or  four  weeks,  and  they  had  not  been  previously  supplied ; 
and,  “ about  the  time  for  the  delivery,”  the  plaintiff  was  proceeding 
with  his  drove  of  hogs  to  Allentown  for  the  purpose  of  delivering  to 
them  two  hundred  hogs.  The  defendant,  b}^  his  falsehood  and  deceit, 
intentionally  prevented  the  performance  of  this  contract,  by  persuading 
Seagraves  and  Wilson  that  the  plaintiff  was  not  intending  to  drive  his 
hogs  to  Allentowm,  whereby  they  were  induced  to  buy  the  hogs  of  the 
defendant,  instead  of  buying  the  hogs  of  the  plaintiff,  as  they  otherwise 
would  have  done.  The  court  sa}r,  that  it  was  “ not  material  whether 
the  contract  of  the  plaintiff  with  Seagraves  and  Wilson  was  binding 
upon  them  or  not ; ” but  the  agreement,  if  there  was  an  agreement, 
although  not  in  writing,  was  an  actual  offer  by  Seagraves  and  Wilson, 
not  revoked,  and  which  they  would  have  performed,  and  the  plaintiff 
was  in  the  actual  possession  of  the  property  which  Seagraves  and  Wil- 
son had  offered  to  buy,  and  was  actually  proceeding  to  deliver  this 
property  to  them,  in  accordance  with  their  offer. 

The  fatal  objection  to  the  present  case  is,  that  it  is  entirety  prob- 
lematical whether  the  plaintiff  would  actually  have  published  a directory 
if  the  defendant  had  not  made  the  fraudulent  misrepresentations  alleged. 
The  plaintiff  abandoned  his  intention  to  compile  and  publish  a direc- 
tory in  consequence  of  the  defendant’s  acts ; but  this,  upon  the  prin- 
ciples stated  in  Bradley  v.  Fuller,1  and  the  cases  therein  cited,  is  not 
sufficient  to  support  an  action.  Judgment  affirmed . 


BOYNTON  v.  SHAW  STOCKING  CO. 

In  the  Supreme  Court  of  Massachusetts,  1888. 

[Reported  146  Mass.  219.] 

Tort  for  an  alleged  libel  contained  in  the  following  words : 
“ Caution  : An  opinion  of  Shaw  knit  hosiery  should  not  be  formed 
from  the  navy  blue  stockings  advertised  as  of  * first  quality’  by 
Messrs.  S.  W.  Boynton  & Co.  at  Vl\  cts.,  since  we  sold  that  firm  at 
less  than  ten  cents  a pair  some  lots  which  were  damaged  in  the  dye- 
house.  [Signed]  Shaw  Stocking  Company,  Lowell,  May  29,  1886.” 
At  the  trial  in  the  Superior  Court,  before  Thompson,  J.,  the  plain- 
tiff offered  evidence  tending  to  prove  the  following  facts  : — 

The  plaintiff  was  the  proprietor  of  a dry-goods  store,  and  did  a 
large  business  in  Waltham,  under  the  style  of  S.  W.  Boynton  & Co., 
his  customers  also  coming  from  the  surrounding  towns  and  cities. 
He  had  for  several  years  purchased  stockings  manufactured  by  the 
defendant.  On  May  3,  1886,  one  Guild,  who  sold  goods  of  the  de- 
fendant on  commission,  called  at  the  plaintiff’s  place  of  business  and 


BOYNTON  V.  SHAW  STOCKING  CO. 


95 


SECT.  II.] 


represented  that  he  had  a large  stock  of  navy  blue  first  quality  Shaw 
knit  stockings  to  sell,  which  were  in  such  sizes  that  the  defendant 
would  sell  them  cheap,  as  it  desired  to  reduce  its  very  large  stock. 
The  plaintiff  examined  samples  of  the  stock  then  in  Guild’s  posses- 
sion, which  were  first  quality  navy  blue  Shaw  knit  stockings,  and, 
after  being  assured  by  Guild  that  the  stock  was  like  the  samples  and 
of  the  very  first  quality,  purchased  one  hundred  dozen  pairs.  After 
the  receipt  of  the  stockings,  and  after  examining  them,  the  plaintiff 
caused  to  be  inserted  in  six  issues  of  “ The  Charles  River  Laborer,”  a 
weekly  paper  published  in  Waltham,  and  having  a large  circulation  in 
that  place  and  in  surrounding  towns  and  cities,  the  following  adver- 
tisement : “ Shaw  Knit  Hose,  navy  blue,  size  8 to  11,  first  quality 
goods,  at  V2\  cts.  per  pair.”  Afterwards,  the  defendant  caused  the 
alleged  libel  to  be  inserted  in  six  issues  of  “ The  Waltham  Daily 
Tribune,”  a newspaper  published  in  Waltham,  and  having  a large 
circulation  therein  and  in  the  surrounding  cities  and  towns. 

C.  Allen,  J.  An  action  will  not  lie  for  mere  disparagement  of  the 
plaintiff’s  goods,  without  averment  and  proof  of  special  damage. 
Pooling  v.  Budget  Publishing  Co .,  144  Mass.  258.  But  the  plaintiff 
contends  that  the  words  used  by  the  defendant  contain  an  imputation 
upon  his  character,  and  that  they  imply  that  he  was  deceiving  the 
public  by  advertising  goods  as  of  first  quality  which  he  knew  were 
damaged.  The  question,  therefore,  is  this  : Taking  the  words  in  their 
natural  sense,  and  without  a forced  or  strained  construction,  do  they 
contain  this  imputation  ? If  the  words  may  fairly  bear  that  meaning, 
then  the  case  should  have  been  submitted  to  the  jury ; otherwise  not. 
Twombly  v.  Monroe , 136  Mass.  464 ; Simmons  v.  Mitchell , 6 App.  Cas. 
156;  Capital  & Counties  Bank  v.  Henty , 7 App.  Cas.  741,  744,  771, 
772,  790,  793. 

We  are  of  opinion  that  the  words,  fairly  construed,  do  not  bear  that 
meaning,  and  that,  in  order  to  reach  such  a construction,  it  is  neces- 
sary to  include  something  which  the  defendant  did  not  say,  and  which 
its  words  do  not  imply.  No  doubt  a case  might  be  imagined  where, 
from  peculiar  circumstances,  — as,  for  example,  from  the  nature  of 
the  article  offered  for  sale,  or  from  the  long  continued  habit  of  selling 
goods  of  a different  character  or  quality  from  that  represented,  — it 
would  be  a natural  inference  from  a charge  otherwise  like  that  which 
is  the  subject  of  this  action,  that  the  party  was  practising  fraud  or 
imposition,  or  was  guilty  of  trickery  or  meanness.  In  the  present 
case,  such  an  inference  does  not  naturally  arise,  and  the  object  of  the 
defendant’s  advertisement,  judging  from  its  language,  appears  to  have 
been  rather  to  uphold  and  maintain  the  character  of  its  goods  than  to 
attack  the  plaintiff’s  character.  The  court  might  properly  withdraw 
the  case  from  the  jury.  See  Boynton  v.  Remington,  3 Allen,  397 ; 
Evans  v.  Harlow,  5 Q.  B.  624  ; Solomon  v.  Lawson,  8 Q.  B.  823. 

Exceptions  overruled. 


96 


DAVEY  V.  DAYEY. 


[CHAI\  I. 


DAYEY  v.  DAYEY. 

In  the  Supreme  Court  of  New  York,  1898. 

[. Reported  50  N.  Y.  S.  161.1] 

Action  by  Michael  Davey  against  Andrew  Davey  to  recover  dam- 
ages for  a libel  published  by  defendant  defaming  plaintiff's  business 
methods.  There  was  a verdict  for  plaintiff,  and  defendant  moves  for 
a new  trial.  Ordered  conditionally. 

McAdam,  J.  The  law  has  always  been  considerate  of  the  reputa- 
tion of  tradesmen  (Newell,  Defam.  [2d  ed.]  192  ; Harman  v.  Delany , 
2 Strange,  898),  and  when  one  publishes  of  a tradesman  or  merchant 
any  matter  in  relation  to  his  calling  which,  if  true,  would  render  him 
unworthy  of  patronage,  one  is  liable  to  an  action,  it  being  evident 
that  the  tendency  of  such  a publication  is  to  bring  the  subject  thereof 
into  disrepute  and  cause  him  injury  (Brown  v.  Smith , 13  C.  B.  596). 
Such  publications  are  actionable  without  proof  of  special  damage. 
Brown  v.  Smith , supra.  The  imputation  imports  damage,  and  if  none 
is  proved  the  jury  may  award  substantial  damages.  The  gist  of  the 
action  is  malice ; yet  the  malice  requisite  is  simply  that  implied  by 
the  law  from  the  facts  which  give  the  right  of  action.  Hartman  v. 
Association  (Com.  PL)  19  N.  Y.  Supp.  398;  Lewis  v.  Chapman , 16 
N.  Y.  372;  Hamilton  v.  Eno , 81  N.  Y.  116;  Byam  v.  Collins , 111 
N.  Y.  143, 19  N.  E.  75. 

The  litigants  are  brothers.  The  defendant  carried  on  the  grocery 
and  tea  business  at  No.  2295  First  Avenue,  and  the  plaintiff  thereafter 
opened  a similar  business  at  No.  2331  First  Avenue.  The  defendant 
threatened  that,  if  the  plaintiff  opened  a rival  establishment  near  the 
defendant’s  store,  he  would  break  up  the  business  of  the  plaintiff ; and 
after  the  latter  opened  the  store  the  defendant  caused  to  be  printed 
and  distributed  broadcast  5000  circulars,  in  which,  after  eulogistically 
describing  the  superiority  of  his  wares  and  the  advantage  the  public 
would  derive  by  patronizing  him,  he  said,  of  and  concerning  the  plain- 
tiff and  his  business  methods,  “ that  an  unscrupulous  grocer  of  the 
same  name  in  the  immediate  vicinity  or  neighborhood  advertises 
‘ Davey's  teas  and  coffees 9 with  a view  to  deceive  the  public,  and  may 
sell  an  inferior  article."  The  words,  though  cunningly  devised  and 
put  together,  taken  in  their  plain  and  popular  sense,  that  in  which 
the  readers  were  sure  to  understand  them  (Roberts  v.  Camden , 9 
East,  96),  bear  the  construction  that  the  plaintiff  was  an  unprincipled 
grocer  (Cent.  Diet.) ; that  he  was  dishonest  in  his  business,  for  he 
advertised  Davey 's  teas  and  coffees  with  a view  to  deceive  the  public ; 
and  that  he  sold  inferior  articles,  this  being  one  of  the  characteristics 
of  unscrupulous  traders.  While  the  defendant  had  the  undoubted 
right  to  praise  his  own  wares,  he  had  no  right  to  single  out  the  plain- 

1 This  case  is  somewhat  abridged.  — Ed. 


DAVEY  V.  DAYEY. 


97 


SECT.  II.] 

tiff  and  not  only  denounce  his  wares,  but,  in  connection  therewith, 
impugn  his  business  integrity.  Such  a publication  could  have  but  one 
purpose,  namely,  to  injure  the  plaintiff  in  his  business,  and  it  is, 
therefore,  clearly  libellous  per  se.  Fowles  v.  Bowen , 30  N.  Y.  20 ; 
Moore  v.  Francis , 121  N.  Y.  199,  23  N.  E.  1127 ; Chenery  v.  Good- 
rich, 98  Mass.  224;  Mattice  v.  Wilcox , 71  Hun,  485,  24  N.  Y.  Supp. 
1060,  affirmed  147  1ST.  Y.  624,  42  N.  E.  270. 

Disparagement  as  to  Conduct  in  Trade.  — Ingram  v.  Lawson , 6 Bing.  N.  C.  212; 
Solomon  v.  Lawson , 8 Q.  B.  823;  Keener  v.  Beckett , L.  R.  7 Q.  B.  11;  Lattimer  v.  News , 
25  L.  T.  n.  s.  44;  Henwood  v.  Hamson,  L.  R.  7 C.  P.  606;  Eeddon  Co.  v.  Ass'n,  1894, 1 Q.  B. 
139;  Australian  Co.  v.  Bennett , 1894,  A.  C.  284;  R.  R.  v.  Press  Co.,  48  Fed.  206;  American 
Co.  v.  Gates,  85  Fed.  729;  Johnson  v.  Bradstreet  Co.,  77  Ga.  172;  Boynton  v.  Stocking  Co., 
146  Mass.  219;  Sherman  v.  Burham,  107  Mich.  189;  Sunderlin  v.  Bradstreet  Co.,  48  N.  Y. 
188;  Bradstreet  Co.  v.  Gill,  72  Tex.  115.  — Ed. 


98 


PENNYMAN  V.  RABANKS. 


[CHAP.  X. 


( b ) OF  GOODS. 

PENNYMAN  v.  RABANKS. 

In  the  Queen’s  Bench,  Michaelmas  Term,  1596. 

[Reported  in  Croke,  Elizabeth,  427.] 

Action  upon  the  case  for  slandering  his  title.  For  that  he  said  to 
J.  S.,  who  was  in  speech  to  buy  the  plaintiff’s  land,  “ I know  one  that 
hath  two  leases  of  his  land,  who  will  not  part  with  them  at  any  reason- 
able rate,”  ubi  revera  nulla  talis  dimissio  facta  fuit.  The  defendant 
justifies  by  reason  of  two  several  leases  by  parol  made  unto  himself. 
The  plaintiff  replies  de  injuria  sua  propria  absque  tali  causa.  Issue 
was  joined,  and  found  for  the  plaintiff.  It  was  now  moved  in  arrest  of 
judgment  that  an  action  lay  not  for  these  words  ; because  it  appears  by 
the  defendant’s  justification  that  he  intended  of  leases  made  of  himself ; 
and  if  a man  claim  estates,  although  they  be  false  he  shall  not  be  pun- 
ished. This  was  agreed  by  all  the  court,  that  no  action  lay  against  one 
for  saying  that  he  himself  had  title  or  estate  in  lands,  &c.,  although  it 
were  false.  But  here  the  words  in  the  declaration,  as  they  are  spoken, 
being  in  the  third  person,  be  not  intendable  of  himself,  but  of  some 
other,  and  import  a slander  to  the  plaintiff’s  title ; and  then  his  justifi- 
cation afterwards  shall  not  take  away  that  action  which  before  was 
given  to  the  plaintiff  for  the  slandering  of  his  title.  Wherefore  rule 
was  given  that  judgment  should  be  entered  for  the  plaintiff,  unless 
other  matter  was  shown  upon  the  third  day  of  the  next  term.  After- 
wards, Pasch.  38  Eliz.,  it  was  adjudged  for  the  plaintiff,  Fenner 
contradicente. 


[sect.  II. 


PITT  V.  DONOVAN. 


99 


PITT  v.  DONOVAN. 

In  the  King’s  Bench,  June  29,  1813. 

[Reported  in  1 Maule  ^ Selwyn , 639.] 

Action  for  slander  of  title.  Plea : general  issue. 

At  the  trial  before  Graham,  B.,  it  appeared  that  the  plaintiff  had 
purchased  certain  lands  at  Bromesberrow  from  W.  H.  Y.,  and  was  about 
to  sell  the  same  to  one  Barton,  but  that  the  defendant  wrote  two  letters 
to  Barton  warning  him  against  completing  the  purchase,  on  the  ground 
that  W.  H.  Y.  was  insane  at  the  time  of  his  conveyance  to  the  plaintiff. 
Barton  thereupon  declined  to  purchase  the  lands.  It  further  appeared 
that  a term  of  years  in  the  estate  was  vested  in  the  defendant  as  trustee 
for  securing  to  Mrs.  W.  H.  Y.  her  jointure,  and  that  the  defendant’s 
wife  was  sister  of  W.  H.  Y.,  and  his  heir  in  the  event  of  his  dying 
without  issue. 

After  an  investigation  of  man}’  hours  the  learned  judge  left  the  ques- 
tion to  the  jury  upon  the  evidence,  stating  to  them,  in  the  course  of  his 
summing  up,  that  in  order  to  maintain  the  action  some  malice  must  be 
fixed  on  the  defendant,  that  is,  the  action  must  be  injurious  and  pro- 
ceeding from  an  improper  motive ; that  if  the  evidence  satisfied  them, 
as  men  of  good  sense  and  good  understanding,  that  Mr.  Y.  was  insane, 
or  if  the  defendant  entertained  a persuasion  that  he  was  insane  upon 
such  grounds  as  would  have  persuaded  a man  of  sound  sense  and 
knowledge  of  business,  then  the  defendant  would  be  entitled  to  a 
verdict. 

The  jury  found  a verdict  for  the  plaintiff,  damages  40s. ; whereupon 
a rule  nisi  was  obtained  in  the  last  term  for  a new  trial,  on  the  ground 
of  a misdirection. 

Dauncey , Abbott , and  Puller , now  showed  cause.1 

The  Attorney- General,  Jervis,  and  W.  E.  Taunton , contra,  were 
stopped  by  the  court. 

Bayley,  J.2  I am  of  the  same  opinion.  It  seems  to  me  that  the 
question  for  the  consideration  of  the  jury  was,  whether  the  defendant 
really  believed  that  which  he  made  the  subject  of  his  communication. 
I have  no  difficulty  in  saying  that  the  defendant  is  not  to  be  regarded 
as  a mere  stranger  in  this  case.  I think  that  he  had  not  only  a right, 
but,  if  he  believed  it  to  be  true,  that  he  was  called  upon  to  make  the 
communication  ; for  if  at  any  subsequent  time  Mr.  Y.  should  die  with- 
out issue,  and  afterwards  the  defendant  should  bring  an  ejectment  to 
try  the  sanity  of  this  gentleman,  it  would  afford  matter  for  strong 
observation  against  him,  that  he  had  suffered  Burton  to  complete  the 

1 The  statement  of  the  case  has  been  condensed  ; the  argument  for  the  plaintiff, 
and  the  concurring  opinions  of  Lord  Ellenborough,  C.  J.,  and  Dampier,  J.,  are 
omitted.  — Ed. 

2 Le  Blanc,  J.,  had  left  the  court. 


100 


PITT  V.  DONOVAN. 


[chap.  I. 


purchase  of  this  estate  and  to  pay  his  money  for  it,  without  communi- 
cating to  him  that  his  title  would  be  disputed.  I think,  therefore,  that 
if  the  defendant  really  believed  this  contract  to  be  void  for  the  want  of 
sanity  in  Y.,  it  was  not  only  his  right  but  his  duty  to  make  the  com- 
munication. Then  where  a person  who  is  not  to  be  treated  as  a mere 
stranger  is  sued  in  an  action  of  this  kind,  two  things  are  to  be  made 
out ; first,  that  there  is  a want  of  probable  cause ; and  secondly,  that 
the  party  who  made  the  communication  acted  maliciously.  Now 
whether  a party  acted  maliciously  depends  upon  his  own  motives  and 
on  the  view  which  the  jury  entertained  of  the  mind  of  the  party  himself ; 
and  we  cannot  try  what  are  the  motives  and  feelings  of  particular  men’s 
minds  by  referring  to  the  mind  of  some  one  other  person ; therefore  if 
we  refer  to  a mind  that  is  sensible  and  reasonable,  and  which  does  not 
judge  under  the  same  pressure  as  the  mind  of  the  person  in  question 
might  do,  and  make  that  sensible  and  reasonable  mind  the  standard  by 
which  to  judge  of  the  state  of  mind  of  the  person  who  is  under  that 
pressure,  we  shall  be  referring  to  an  improper  rule  to  judge  by.  The 
question  here  is  not  wh^t  judgment  a sensible  and  reasonable  man 
would  have  formed  in  this  case,  but  whether  the  defendant  did  or  did 
not  entertain  the  opinion  he  communicated.  I forbear  to  give  any 
opinion  on  the  weight  of  evidence,  but  the  short  question  is,  whether 
the  defendant  acted  bona  fide.  That  was  the  question  for  the  jury  to 
decide,  but  was  not  left  to  them  in  that  form  ; that  is,  whether  he  acted 
maliciously  or  not.  I therefore  feel  myself  bound  to  say  that  there 
ought  to  be  a new  trial.  Buie  absolute. 


SECT.  II. 


PAULL  V.  HALFERTY. 


101 


PAULL  v.  HALFERTY. 

In  the  Supreme  Court  of  Pennsylvania,  1869. 

[Reported  63  Pa.  St.  46. !] 

The  representation  in  this  case  was,  that  an  experienced  iron 
manufacturer  was  of  opinion  that  the  iron  ore  in  the  land  was  but  a 
"pocket”  or  nest,  that  would  suddenly  run  out,  and  that  he  had  used 
ore  from  the  bank  with  other  ores,  in  order  to  save  it.  This  was  a 
most  successful  mode  of  depreciating  the  value  of  the  land  as  mineral 
land,  and  if  this  was  false  and  malicious  as  well  as  injurious  to  the 
plaintiff,  why  shall  he  not  be  indemnified  ? The  defendant  did  not 
pretend  to  prove  that  Col.  Mathiot  ever  did  say  what  he  imputed  to 
him,  or  that  the  fact,  independently  of  him,  was  true.  The  witness, 
the  party  in  treaty  for  the  land,  says  that  in  consequence  of  this  com- 
munication from  the  defendant,  having  confidence  in  him,  he  refused 
to  go  on  with  the  purchase,  and  thus  the  matter  ended.  As  the  use 
of  the  words  in  question  was  not  in  se  actionable,  the  plaintiff  proved 
their  falsity,  so  far  as  observation,  experience,  judgment,  and  the 
declarations  of  the  defendant  could  go.  This  made  a case  for  the 
jury,  and  it  would,  we  think,  have  been  manifest  error  in  the  judge  to 
have  affirmed  the  defendant’s  point. 

It  would  hardly  be  denied,  I think,  if  one  were  falsely  and  mali- 
ciously to  represent  that  a piece  of  land  and  residence  which  a neigh- 
bor was  about  to  sell  was  very  unhealthy,  and  thus  break  off  an 
advantageous  sale,  that  this  would  be  actionable,  if  damage  was 
shown. 

For  misrepresenting  personal  qualities,  such  as  the  imputation  of 
the  want  of  chastity,  by  which  an  advantageous  marriage  was  lost, 
an  action  lies,  although  the  words  employed  may  not  in  themselves  be 
actionable.  Moody  v.  Baker , 5 Cowen,  351,  is  of  this  sort,  and  there 
are  many  such  in  the  books.  For  falsely  representing  a ship  as  unsea- 
worthy, an  action  lies : Ingram  v.  Lawson , 9 Car.  & P.  326.  This, 
although  the  seaworthiness  of  the  vessel  might  be  claimed  as  “ a 
standing  refutation  ” of  the  slander,  being  a thing  easily  ascertained. 
I regard  the  text  of  Starkie  on  Slander,  page  172,  ed.  of  1869,  as  quite 
to  the  point  in  a case  of  this  kind.  It  is  there  said,  “ where  a party 
is  prevented  from  selling,  exchanging,  or  making  any  advantageous 
disposition  of  land  or  other  property,  in  consequence  of  the  imper- 
tinent interference  of  the  defendant,  he  may  maintain  an  action  for 
the  inconvenience  he  has  suffered.”  Burr.  R.  2622  is  cited  for  this 
by  the  learned  author.  With  all  these  analogies  and  principles  to 
sustain  the  ruling  of  the  learned  judge,  we  think  he  committed  no 
error  in  answering  the  defendant’s  first  point  as  he  did. 

1 This  case  is  abridged.  — Ed. 


102 


HATCHARD  V.  MEGE. 


[CHAP.  I. 


HATCHARD  v.  MEGE  and  Others. 

In  the  Queen’s  Bench  Division,  April  1,  1887. 

[Reported  in  18  Queen’s  Bench  Division  Reports,  771.] 

Day,  J.1  This  is  an  application  to  set  aside  a nonsuit,  which  was 
directed  by  the  Lord  Chief  Justice  on  the  opening  statement  of  counsel, 
and  the  question  is  whether  the  nonsuit  was  properly  entered. 

The  statement  of  claim  alleged  that  the  defendants  wrote  and  pub- 
lished “ of  and  concerning  the  plaintiff  and  his  said  trade  as  a wine- 
merchant  and  importer  the  following  false  and  malicious  libel,  that  is 
to  say : — 

“ 4 Caution  : Delmonico  Champagne.  Messrs.  Delbeck  & Co.,  finding 
that  wine  stated  to  be  Delmonico  champagne  is  being  advertised  for 
sale  in  Great  Britain,  hereb}7  give  notice  that  such  wine  cannot  be  the 
wine  it  is  represented  to  be,  as  no  champagne  shipped  under  that  name 
can  be  genuine  unless  it  has  their  names  on  their  labels.  Messrs. 
Delbeck  & Co.  further  give  notice  that  if  such  wine  be  shipped  from 
France  they  will  take  proceedings  to  stop  such  shipments,  and  such 
other  proceedings  in  England  as  they  may  be  advised/  thereby  mean- 
ing that  the  plaintiff  had  no  right  to  use  his  said  registered  trade-mark 
or  brand  for  champagne  imported  or  sold  by  him,  and  that  in  using 
such  trade-mark  or  brand  he  was  acting  fraudulently,  and  endeavoring 
to  pass  off  an  inferior  champagne  as  being  of  the  manufacture  of 
Messrs.  Delbeck  & Co.,  and  that  the  champagne  imported  and  sold  by 
the  plaintiff  was  not  genuine  wine,  and  that  no  person  other  than  the 
defendants  had  the  right  to  use  the  word  ‘ Delmonico  ’ as  a trade-mark 
or  brand,  or  part  of  a trade-mark  or  brand,  of  champagne  in  the  United 
Kingdom.” 

The  publication  there  set  out  is  complained  of  as  a libel  on  the  plain- 
tiff in  relation  to  his  trade.  It  is  substantially  a warning  not  to  buy 
Delmonico  champagne  because  it  is  not  genuine.  The  statement  of 
claim  alleges  that  the  publication  is  false  and  malicious  ,*  that  would  be 
a question  for  the  jury ; it  is  not  for  us  to  consider  the  facts  of  the 
case  ; we  can  only  look  at  what  was  opened  by  the  plaintiff’s  counsel 
and  what  appears  on  the  pleadings.  The  innuendo  charges  that  the 
defendants  intended  to  convey  the  meaning  that  the  plaintiff  had  no 
right  to  use  his  trade-mark  or  brand,  and  that  the  wine  he  sold  was  not 
genuine.  It  may  be  that  the  publication  bears  that  meaning,  and  that 
the  words  used  import  dishonesty.  The  plaintiff  has  died,  and  the 
question  to  be  decided  is  how  much,  if  any  part,  of  the  cause  of  action 
survives.  The  statute  4 Edw.  3,  c.  7,  and  the  course  of  practice,  make 
it  clear  that  a civil  action  for  libel  dies  with  the  death  of  the  person 
libelled.  It  does  not  come  within  the  spirit,  and  certainly  not  within 
the  letter  of  the  statute.  There  is,  however,  a further  question  whether 

1 Only  the  opinion  of  Day,  J.,  is  given.  Wills,  J.,  concurred.  — Ed. 


SECT.  II.] 


HATCHARD  V.  MEGE. 


103 


a right  of  action  can  survive  because  injury  to  the  plaintiffs  trade-mark 
is  alleged.  Injury  to  trade  is  constantly  alleged  in  actions  for  libel,  and 
therefore  that  does  not  affect  the  question  of  survivorship.  In  the 
present  case  the  second  part  of  the  statement  of  claim  may  be  sub- 
divided into  two  separate  and  distinct  claims.  The  first  is  for  ordinal 
defamation,  either  independently  of  the  plaintiff’s  trade,  affecting  his 
character  b}7  charging  him  with  being  a dishonest  man,  or  defamation 
of  him  in  his  trade  by  charging  him  with  being  a dishonest  wine- 
merchant.  That  claim  would  not  survive,  for  it  is  nothing  more  than 
a claim  in  respect  of  a libel  on  an  individual.  But  this  publication  may 
be  construed  to  mean  that  the  plaintiff  had  no  right  to  use  his  trade- 
mark. This  is  not  properly  a libel,  but  is  rather  in  the  nature  of 
slander  of  title,  which  is  well  defined  in  Odgers  on  Libel  and  Slander, 
c.  v.,  p.  137,  in  the  following  passage : “ But  wholly  apart  from  these 
cases  there  is  a branch  of  the  law  (generally  known  by  the  inappropri- 
ate but  convenient  name  — slander  of  title)  which  permits  an  action  to 
be  brought  against  any  one  who  maliciously  decries  the  plaintiff’s  goods 
or  some  other  thing  belonging  to  him,  and  thereby  produces  special 
damage  to  the  plaintiff.  This  is  obviously  no  part  of  the  law  of  defa- 
mation, for  the  plaintiff’s  reputation  remains  uninjured ; it  is  realty  an 
action  on  the  case  for  maliciously  acting  in  such  a way  as  to  inflict  loss 
upon  the  plaintiff.  All  the  preceding  rules  dispensing  with  proof  of 
malice  and  special  damage  are  therefore  wholly  inapplicable  to  cases  of 
this  kind.  Here,  as  in  all  other  actions  on  the  case,  there  must  be  et 
damnum  et  injuria . The  injuria  consists  in  the  unlawful  words 

maliciously  spoken,  and  the  damnum  is  the  consequent  money  loss  to 
the  plaintiff.” 

It  appears,  therefore,  that  the  first  and  last  parts  of  the  innuendo  in 
the  present  case  suggest  slander  of  title.  As  appears  from  the  pas- 
sage I have  read,  an  action  for  slander  of  title  is  not  an  action  for  libel, 
but  is  rather  in  the  nature  of  an  action  on  the  case  for  maliciously 
injuring  a person  in  respect  of  his  estate  by  asserting  that  he  has  no 
title  to  it.  The  action  differs  from  an  action  for  libel  in  this,  that 
malice  is  not  implied  from  the  fact  of  publication,  but  must  be  proved, 
and  that  the  falsehood  of  the  statement  complained  of,  and  the  exist- 
ence of  special  damage,  must  also  be  proved  in  order  to  entitle  the 
plaintiff  to  recover.  The  question  whether  the  publication  is  false  and 
malicious  is  for  the  jury.  Here,  I think,  special  damage  is  alleged  by 
the  statement  of  claim,  and  if  the  plaintiff  could  have  shown  injury  to 
the  sale  of  the  wine  which  he  sold  under  his  trade-mark,  he  would  have 
been  entitled  to  recover,  arid  that  is  a cause  of  action  which  survives. 

For  these  reasons  I am  of  opinion  that  the  nonsuit  was  right  so  far 
as  it  related  to  the  claim  in  respect  of  a personal  libel,  but  was  wrong 
as  to  the  claim  in  respect  of  so  much  of  the  publication  as  impugned 
the  plaintiff’s  right  to  sell  under  his  trade-mark  or  brand. 

There  will,  therefore,  be  an  order  for  a new  trial,  but  it  will  be 
limited  to  this  latter  part  of  the  claim.  Order  for  a new  trial . 


104 


LEWIN  V.  WELSBACH  LIGHT  CO. 


[CHAP.  I. 


LEWIN  v.  WELSBACH  LIGHT  CO. 

In  the  Circuit  Court  of  the  United  States,  1897. 

[Reported  81  Fed.  Rep.  904.] 

Dallas,  Circuit  Judge.  The  bill  sets  forth  that  the  complainants 
are  now  endeavoring  to  become  active  competitors  of  the  defendants 
in  the  sale  of  incandescent  lights,  etc.,  and  that  one  of  the  defendants 
manufactures  such  lights,  etc.,  and  the  other  of  them  is  engaged  in 
selling  goods  made  by  the  former.  It  states  that  the  Welsbach  Light 
Company  has  brought  suit  against  these  complainants,  in  this  court, 
for  alleged  infringement  of  a certain  patent,  and  that  the  complain- 
ants have  duly  appeared  in  that  suit.  It  avers  that  the  patent  so  sued 
upon  is  solely  for  a process,  and  that  the  complainants  cannot  be  held 
to  be  infringers  thereof,  because,  as  alleged,  they  are  not  manufactur- 
ers, but  are  exclusively  engaged  in  selling  the  products  of  a certain 
manufacturer,  against  whom  the  Welsbach  Light  Company  has  brought 
suit,  in  the  Southern  district  of  New  York,  for  alleged  infringement 
of  the  same  patent,  and  which  suit  the  said  manufacturer,  who  is 
amply  responsible,  is  vigorously  contesting.  The  bill  also  avers  that 
the  patent  referred  to  is  now  invalid,  under  section  4887  of  the  Re- 
vised Statutes,  by  reason  of  the  expiration  of  a certain  Spanish  patent 
for,  as  alleged,  the  same  invention.  The  foregoing  is  the  substance 
of  paragraphs  1 to  8 of  the  bill.  The  gist  of  the  complaint  is  pre- 
sented in  the  paragraphs  which  follow,  and  may,  I think,  be  fairly 
reduced  to  the  statement  that  the  defendants  in  this  suit,  with  know- 
ledge of  the  matters  already  mentioned,  and  with  intent  to  destroy  the 
complainants’  business,  have  conspired  to  threaten,  intimidate,  and 
prevent  the  customers,  present  and  prospective,  of  the  latter,  from 
dealing  with  them,  “ by  the  systematic  and  formulated  plans,  methods, 
and  concerted  conduct  and  action,  in  manner  and  form  following,” 
namely,  by  publishing  and  distributing  “ false,  injurious,  malicious, 
scandalous,  threatening,  and  intimidating  circulars  or  printed  letters,” 
containing  intimidating  threats  of  suit  on  the  patent  before  referred 
to ; by  distributing  such  circulars  among  the  customers  and  prospec- 
tive customers  of  the  complainants,  and  among  the  trade  and  the  pub- 
lic generally ; by  spying  upon  the  complainants’  business,  with  the 
aid  of  detectives  and  others,  and  thus  ascertaining  their  customers  ; 
by  causing  the  defendants’  attorneys  to  write  letters  to  the  complain- 
ants’ customers  (so  ascertained),  threatening  suit  against  them  on  the 
patent  aforesaid ; and  by  causing  the  agents  of  the  defendants  to  call 
upon  the  customers  of  the  complainants  and  make  like  threats.  The 
prayers  are  for  an  injunction  to  restrain  the  commission  of  the  acts 
complained  of,  and  for  a decree  ior  such  damages  as  may  be  found  by 
a jury  upon  a feigned  issue  to  be  awarded. 

The  allegation  that  the  patent  under  which  the  defendants  justify 


SECT.  II.]  LEWIN  V.  WELSBACH  LIGHT  CO.  105 

is  invalid,  and,  even  if  valid,  is  not  infringed  by  the  complainants,  is 
one  which,  of  course,  might  be  made  in  defense  of  the  suit  which  it  is 
admitted  the  defendants  have  brought  against  the  complainants. 
However  impregnable  that  defense  may  be  thought  to  be,  it  must  be 
maintained  in  that  proceeding  before  its  availabilty  can  be  assumed 
or  adjudged  in  another.  It  is  a mistake  to  suppose  that,  by  demur- 
ring, the  defendants  have  conceded  its  sufficiency.  The  demurrer 
avers  that  the  bill  does  not  show  title  to  the  relief  sought,  but  this 
averment  involves  neither  admission  nor  denial  of  invalidity  or  of 
noninfringement,  but  simply  challenges  the  right  of  the  complainants 
to  have  either  of  those  questions  tried  in  the  manner  they  propose; 
and  in  my  opinion,  it  is  clear  that  they  are  not  entitled  to  have  them 
tried  in  this  suit.  Accordingly,  the  only  legitimate  inquiry  now  is  : 
Are  the  acts  and  conduct  of  the  defendants,  as  alleged  in  the  bill, 
such  as  a court  of  equity  should  restrain  the  owner  of  a presumptively 
valid  patent  from  doing  and  pursuing?  What,  then,  does  the  bill 
allege  that  the  defendants  have  actually  done  to  the  injury  of  the 
complainants  ? If  nothing  more  were  alleged  than  that  the  defendants 
have  given  notice,  in  good  faith  and  in  temperate  language,  of  their 
purpose  to  proceed  against  alleged  infringers,  I would  have  no  hesita- 
tion in  holding  that  they  had  not  exceeded  their  right.  But  the  bill 
goes  somewhat  further.  It  alleges  the  intent  of  the  defendants  to  be, 
not  to  protect  and  maintain  their  own  rights,  but,  under  color  and  pre- 
tense of  that  object,  to  destroy  the  complainants’  business,  in  advance 
of  any  adjudication  of  the  question  of  their  right  to  maintain  and  con- 
tinue it,  and  that,  in  pursuance  of  such  intent,  the  circulars  or  letters 
complained  of  have  not  been  properly  framed,  but  are  “ false,  inju- 
rious, malicious,  scandalous,  threatening,  and  intimidating.”  It  is  not 
manifestly  impossible  that  this  allegation  may  be  sustained,  and  in 
such  manner  as  to  entitle  the  complainants  to  relief,  though  I may 
say  that  it  does  not  seem  to  me  to  be  probable,  in  view  of  the  fact  that 
the  complainants  have  themselves  been  sued  on  the  patent,  that  the 
defendants’  good  faith  in  notifying  their  purpose  to  proceed  against 
other  alleged  infringers  (if  that  is  the  substance  of  all  they  have  done) 
can  be  successfully  attacked ; and  the  criticism  of  defendants’  counsel 
upon  the  omission  to  set  out  any  of  the  circulars  in  the  bill  calls  atten- 
tion to  a matter  which  may  be  not  without  significance.  If,  upon  the 
one  hand,  those  circulars  should  turn  out  to  be  such  notices  as  the  de- 
fendants could  rightfully  give ; or  if,  on  the  other  hand,  they  shall, 
when  produced,  appear  to  be  mere  libels,  — this  suit  could  not  be  sus- 
tained. But  my  examination  of  the  case,  as  it  is  now  presented,  has 
led  me  to  believe  that  the  bill  should  be  retained,  but  that  the  ques- 
tions which  have  been  adverted  to  should  be  reserved  for  further  con- 
sideration hereafter ; and,  accordingly,  the  demurrer  is  overruled,  but 
without  prejudice,  and  with  leave  to  the  defendants  to  again  present 
the  same  matter  by  answer. 


106 


WEST.  COS.  MANURE  CO.  V.  LAWES  MANURE  CO.  [CHAP.  I. 


THE  WESTERN  COUNTIES  MANURE  CO.  v.  THE  LAWES 
CHEMICAL  MANURE  CO. 

In  the  Exchequer,  June  9,  1874. 

[Reported  in  Law  Reports,  9 Exchequer,  218.] 

Bramwell,  B.1  In  this  case  our  judgment  must  be  for  the  plain- 
tiffs. The  case  may  be  shortly  stated  thus.  The  plaintiffs  trade  in  a 
certain  article  of  manure,  and  it  is  alleged  that  the  defendants  falsely 
and  maliciously  published  of  and  concerning  that  manure,  and  of  and 
concerning  the  plaintiffs’  trade  and  manufacture,  a certain  statement 
which  contains  in  it  this,  — that  it  was  an  article  of  low  quality  and 
ought  to  be  the  cheapest  of  four,  of  which  this  is  one,  the  others  being 
mentioned.  So  far  an  action  would  not  be  maintainable,  because  it  is 
not  libelling  an  article  to  say  that  it  is  an  article  of  low  quality  and 
ought  to  be  cheaper  than  others.  That  part  is  not  specifically  stated 
to  be  untrue,  but  having  been  published  as  it  is  said  of  and  concern- 
ing the  plaintiffs’  manufactures  and  trade,  the  declaration  goes  on  and 
says,  “ meaning  thereby  that  the  artificial  manures  so  manufactured 
and  traded  in  by  the  plaintiffs  were  artificial  manures  of  inferior  quality 
to  other  artificial  manures,  and  that  they  especially  were  of  inferior 
quality  to  the  artificial  manures  of  the  defendants.”  I think  if  it 
stopped  there  it  would  not  be  the  subject-matter  of  an  action,  even 
with  special  damage  resulting  from  it,  because  I do  not  see  that  it  is 
injurious  to  an  article  to  say  that  it  is  of  inferior  quality.  It  may 
attract  certain  customers,  and  it  is  a very  good  thing  that  people  can 
be  found  who  will  sell  things  of  an  inferior  quality  in  order  that  they 
may  not  be  wasted.  But  what  makes  the  action  maintainable  is  the 
allegation  that  follows  : “ Whereas,  in  truth  and  in  fact,  the  said  arti- 
ficial manures  so  manufactured  and  traded  in  by  the  plaintiffs  were 
not  of  inferior  quality,  and  were  not  inferior  in  quality  to  the  said 
articles  of  manure  of  the  defendants  ; ” and  by  reason  of  the  premises, 
certain  persons,  who,  if  they  had  not  been  told  that  which  was  un- 
true, would  have  continued  to  deal  with  the  plaintiffs,  are  alleged  to 
have  ceased  to  deal  with  them.  So  that  it  appears  there  was  a state- 
ment published  by  the  defendants  of  the  plaintiffs’  manufacture,  which 
is  comparatively  disparaging  of  that  manufacture,  which  is  untrue  so 
far  as  it  disparages  it,  and  which  has  been  productive  of  special  dam- 
age to  the  plaintiffs ; and  it  is  stated  that  that  publication  was  made 
falsely  and  “ maliciously,”  which  possibly  may  mean  nothing  more  than 
that  it  was  made  falsely,  and  without  reasonable  cause,  calling  for  a 
statement  by  the  defendants  on  the  subject.  But  if  actual  malice  is 
necessary  — which  I do  not  think  is  the  case  — the  allegation  is  suffi- 
cient. It  seems  to  me,  however,  that  where  a plaintiff  says,  “ You  have 
without  lawful  cause  made  a false  statement  about  my  goods  to  their 

1 Only  the  opinions  of  the  court  are  given.  — Ed. 


107 


SECT.  II.]  WEST.  COS.  MANURE  CO.  V.  LAWES  MANURE  CO. 

comparative  disparagement,  which  false  statement  has  caused  me  to  lose 
customers,”  an  action  is  maintainable. 

I do  not  go  through  the  cases,  but  undoubtedly  there  is  nothing  in 
any  of  them  inconsistent  with  the  judgment  we  now  pronounce.  The 
only  case  that  I will  refer  to  is  Young  v.  Macrae.1  When  examined 
that  case  will  be  found  to  differ  materially  from  this  one.  The  dispar- 
aging statement  there  was  not  expressly  said  to  be  untrue  ; it  was  only 
said  generally  that  the  libel  was  untrue,  which  it  might  be  if  onl}’  so 
much  of  it  was  untrue  as  contained  praise  of  the  defendants’  own  goods. 
On  the  general  principle,  therefore,  that  an  untrue  statement  disparag- 
ing a man’s  goods,  published  without  lawful  ^occasion,  and  causing  him 
special  damage,  is  actionable,  we  give  our  judgment  for  the  plaintiffs. 

Pollock,  B.  I agree  that  our  judgment  in  this  case  should  be  in 
favor  of  the  plaintiffs.  This  case,  no  doubt,  involves  first  principles. 
On  the  one  hand,  the  law  is  strongly  against  the  invention  or  creation 
of  any  rights  of  action,  but,  on  the  other  hand,  where  a wrong  has 
actually  been  suffered  by  one  person  in  consequence  of  the  conduct  of 
another,  one  is  anxious  to  uphold  as  far  as  possible  the  maxim  “ ubi 
jus  ibi  remedium”  It  seems  to  me  the  present  case  comes  within  that 
rule.  Now,  in  the  first  place,  this  is  not  an  action  of  libel.  I think  it 
is  entirely  distinguishable  from  that  class  of  cases.  It  is  alleged  in  the 
declaration  that  the  matter  complained  of  here  was  written.  I think 
that  makes  no  distinction.  I will  not  say  more  upon  that  than  that  the 
difference  between  a written  or  verbal  statement  of  the  kind  now  com- 
plained of  and  an  ordinary  defamatory  statement  is  very  clearly  pointed 
out  by  Tindal,  C.  J.,  in  his  judgment  in  Malachy  v.  Soper.  This  action 
is,  I think,  in  the  nature  of  an  action  of  slander  of  title,  and  comes 
within  the  general  rule  laid  down  as  to  such  actions  in  Conans’  Digest, 
where  it  is  said  that  an  action  lies  when  special  damage  is  shown. 
(Com.  Dig.  tit.  Action  on  Case  for  Defamation,  Gil.) 

The  only  question,  therefore,  that  seems  to  arise  is,  what  is  the  fair 
intention  of  the  words?  It  is  alleged  that  the  defendants  were  con- 
triving and  intending  to  injure  the  plaintiffs  in  their  business,  and  that 
they  falsely  and  maliciously  printed  and  published  the  words  in  ques- 
tion. Now  I do  not  attach  any  special  meaning  to  the  word  “ mali- 
ciously,” except  so  far  as  it  must  be  taken  with  the  words  “contriving 
and  intending  to  injure  the  plaintiffs.”  I think  that  deprives  the  defend- 
ants of  what  I may  call  any  legal  occasion  or  opportunity  on  which  they 
might  use  words  of  this  kind.  Therefore  we  have  it  stated  that  with- 
out legal  occasion,  without  any  necessit}r,  the  defendants  have  used 
language  of  and  concerning  the  plaintiffs’  goods  which  not  only  are 
false,  but  are  such  as  to  injure  the  plaintiffs  in  their  business,  and 
special  damage  is  alleged.  When  all  these  things  concur  it  seems  to 
me  a good  cause  of  action  is  disclosed.  With  reference  to  the  cases 
that  have  been  cited,  Malachy  v.  Soper,  Evans  v.  Harlow,2  and  Young 
v.  Macrae,3 1 would  only  observe  that,  in  the  two  first-mentioned  cases, 

1 3 B.  & S.  264.  2 5 Q.  B.  624.  3 3 B.  & S.  264. 


108 


HUBBUCK  V.  WILKINSON. 


[CHAP.  I. 

there  is  no  allegation  of  special  damage,  whilst  the  last  is  distinguish- 
able on  the  grounds  mentioned  by  my  Brother  Bramwell.  Moreover, 
there  the  Chief  Justice  in  his  judgment  supposes  a case  very  like  the 
present  one,  and  states  that,  in  his  opinion,  an  action  would  lie  in  such 
circumstances.  Judgment  for  the  plaintiff s. 


HUBBUCK  v.  WILKINSON. 

In  the  Court  of  Appeal,  1898. 

[. Reported  1899,  1 Q.  B.  86.1] 

[Defendants  conducted  certain  “ Paint-covering  ” experiments. 
Nine  pounds  of  plaintiffs’  paint  were  used  and  the  same  amount  of 
the  defendants.  The  expert  reported  that  the  defendants’  paint  had 
the  advantage  over  the  plaintiffs’  in  every  respect.  The  plaintiffs 
alleged  that  the  report  was  untrue ; that  the  paint  of  the  plaintiffs 
was  in  fact  superior  ; and  that  they  had  lost  trade  by  means  of  the 
publication  of  this  report.  Motion  that  no  cause  of  action  disclosed.] 

Bindley,  M.  B-.  We  will  now  consider  the  circular  in  its  other 
aspect,  namely,  as  a disparagement  of  the  plaintiffs’  goods.  From  this 
point  of  view  the  case  is  undistinguishable  from  Evans  v.  Harlow  2 and 
Young  v.  Macraef  where  malice,  falsehood,  and  damage  were  all 
alleged,  and  yet  it  was  held  that  what  the  defendant  there  published 
was  not  actionable.  The  ground  of  the  decision  in  both  cases  was  that 
for  a person  in  trade  to  puff  his  own  wares  and  to  proclaim  their 
superiority  over  those  of  his  rivals  is  not  actionable.  The  principle 
laid  down  in  these  cases  has  never  been  questioned,  and  it  has  been 
emphatically  approved  in  White  v.  Mellin .4  The  defendants  in  this 
case  give  the  results  of  some  experiments  with  the  two  sorts  of  paint, 
and  in  paragraph  5 of  the  statement  of  claim  the  plaintiffs  say  that 
the  report  of  the  experiments  is  untrue,  and  that  the  trials  were  not 
fairly  made.  But,  supposing  this  to  be  the  case,  the  result  is  not 
altered.  Paragraph  5 merely  states  more  particularly  what  has  been 
already  stated  before  in  paragraph  3,  where  the  general  charge  of 
falsehood  is  made.  Even  if  each  particular  charge  of  falsehood  is 
established,  it  will  only  come  to  this  — that  it  is  untrue  that  the  de- 
fendants’ paint  is  better  than  or  equal  to  that  of  the  plaintiffs,  for 
saying  which  no  action  lies.  The  particular  reasons  for  making  that 
statement  are  immaterial  if  the  statement  itself  is  not  actionable. 
The  statement  of  claim,  then,  as  it  stands,  shows  no  reasonable  cause 
of  action ; and  the  only  other  question  is  whether  the  plaintiffs  should 
have  liberty  to  amend  by  stating  special  damage  as  distinguished 


1 This  case  is  somewhat  abridged.  — Ed. 
8 [1895]  A.  C.  154. 


2 5 Q.  B.  624. 

4 3 B.  & S.  264. 


HTJBBUCK  V.  WILKINSON. 


109 


SECT.  II.] 


from  general  damage.  In  Evans  v.  Harlow 1 all  the  members  of  the 
court  agreed  that  the  declaration  showed  no  cause  of  action.  Pat- 
teson,  J.,  however,  went  on  to  say  that  an  action  for  disparaging  the 
plaintiff’s  goods  would  not  lie  unless  the  plaintiff  alleged  that  by 
reason  of  the  disparagement  he  had  been  prevented  from  selling  his 
goods  to  some  particular  person.  But  in  Young  v.  Macrae  2 it  was 
pointed  out  that  there  were  different  ways  of  disparaging  a man’s 
goods  — that  some  false  statements  about  them  might  be  actionable 
if  special  damage  could  be  proved,  and  Western  Counties  Manure  Co. 
v.  Lawes  Chemical  Manure  Co.8  was  decided  on  this  ground.  But  in 
Young  y.  Macrae 4 it  was  also  pointed  out  that,  if  the  only  false  state- 
ment complained  of  is  that  the  defendant’s  goods  are  better  than  the 
plaintiff’s,  such  a statement  is  not  actionable,  even  if  the  plaintiff 
is  damnified  by  it.  The  judgments  of  Cockburn,  C.  J.,  and  of  Wight- 
man,  J.,  who  was  a party  to  the  decision  in  Evans  v.  Harlow ,5  are  clear 
upon  this  point.  Lord  Herschell  expressed  himself  very  emphatically 
to  the  same  effect  in  White  v.  Mellin ,6  and  he  expressed  his  clear 
opinion  that  it  could  make  no  difference  whether  a defendant  said 
that  his  goods  were  better  than  the  plaintiff’s  generally,  or  whether 
the  particulars  in  which  the  plaintiff’s  goods  were  said  to  be  inferior 
were  specified.  He  pointed  out  with  great  force  that,  if  actions  in 
such  cases  were  held  to  lie,  the  courts  would  be  constantly  engaged  in 
trying  the  respective  merits  of  the  goods  of  rival  traders,  and  the 
pernicious  practice  of  bringing  actions  for  mere  purposes  of  advertis- 
ing would  be  greatly  encouraged : see  also  British  Empire  Type  Set- 
ting Co.  v.  Linotype  Co?  The  present  plaintiffs’  case  would  not, 
therefore,  be  improved  by  the  allegation  and  proof  of  actual  loss.  In 
other  words,  compliance  with  the  master’s  order  requiring  more  de- 
finite allegation  of  special  damage  would  not  improve  the  plaintiffs’ 
case.  The  plaintiffs  do  allege  actual  loss  attributable  to  the  defend- 
ants’ circular ; and,  if  proof  of  such  loss  would  enable  the  plaintiffs 
to  maintain  their  action,  it  would  be  wrong  summarily  to  strike  out 
their  statement  of  claim,  although  it  might  have  been  open  to  a de- 
murrer before  the  Judicature  Acts  : see  on  this  point  Ratcliff e v. 
Evans.8  We  regard  this  case  as  falling  within  the  principle  estab- 
lished by  Evans  v.  Harlow ,9  Young  v.  Macrae,™  and  White  v.  Mellin .u 
It  is  not  necessary  to  consider  how  the  case  would  have  stood,  if  the 
defendants  had  not  been  rival  traders  simply  puffing  their  own  goods 
and  comparing  theirs  with  those  of  the  plaintiffs.  If  the  defendants 
had  made  untrue  statements  concerning  the  plaintiffs’  goods  beyond 
saying  that  they  were  inferior  to,  or,  at  all  events,  not  better  than, 
those  of  the  defendants,  or  if  the  defendants  were  not  rivals  in  trade 
and  had  no  lawful  excuse  for  what  they  said,  it  would  not  have  been 
right  summarily  to  strike  out  the  statement  of  claim  as  showing  no 


1 5 Q.  B.  624.  2.3B.  & S.  264. 

4 3 B.  & S.  264.  6 5 Q.  B.  624. 

7 79  L.  T.  8.  8 [1892]  2 Q.  B.  524. 

10  3 B.  & S.  264.  11  [1895]  A.  C.  154. 


3 L.  R.  9 Ex.  218. 

6 [1895]  A.  C.  164-5. 
» 5 Q.  13.  624. 


110 


HUBBUCK  V.  WILKINSON. 


[CHAP.  I. 

reasonable  cause  of  action.  But  the  circular  complained  of  is  such  as 
plainly  to  constitute  no  cause  of  action  even  if  all  the  allegations  in 
the  statement  of  claim  are  true.  U nder  these  circumstances  the  appeal 
must  be  allowed,  with  costs  here  and  below  ; and,  as  there  is  no  reason 
to  suppose  that  the  plaintiffs  can  improve  their  case  by  any  amend- 
ments they  can  make,  the  court  ought  to  exercise  the  power  conferred 
upon  it  by  Order  xxv.,  r.  4,  and  order  judgment  to  be  entered  for  the 
defendants. 

Appeal  allowed. 

Disparagement  of  Goods  unfair.  — Fenv.  Dixie,  Wm.  Jones,  444;  Evans  v.  Harlow, 
5 Q.  B.  624;  Young  v.  Macrae,  3 B.  & S.  264;  Manure  Co.  v.  Manure  Co.,  L.  R.  9 Exch. 
218;  White  v.  Mellin,  1895,  A.  C.  154;  Typesetting  Co.  v.  Linotype  Co.,  79  L.  T.  8;  Hubbuck 
v.  Wilkinson,  1899,  1 Q.  B.  86;  Dooling  v.  Budget  Co.,  144  Mass.  258;  Steketee  v.  Kirwin, 
48  Mich.  322;  Wilson  v.  Dubois,  35  Minn.  471;  Weir  v.  Allen,  51  N.  H.  177 ; Tobias  v.  Bor- 
land, 4 Wend.  537;  Lubricating  Co.  v.  Oil  Co.,  42  Hun,  153;  Pauli  v.  Halferty,  63  Pa.  St. 
46.  — Ed. 


SECT.  II.] 


KEEBLE  V.  HICKERINGILL. 


Ill 


(c)  COERCION. 

(a)  WITH  FORCE. 

GARRET  v.  TAYLOR. 

In  the  King’s  Bench,  Easter  Term,  1620. 

[Reported  in  Croke,  James,  567.] 

Action  on  the  case.  Whereas  he  was  a Freemason,  and  used  to  sell 
stones,  and  to  make  stone  buildings,  and  was  possessed  of  a lease  for 
divers  years  to  come  of  a stone-pit  in  Hedington,  in  the  county  of 
Oxford,  and  digged  divers  stones  there,  as  well  to  sell  as  to  build 
withal ; that  the  defendant,  to  discredit  and  to  deprive  him  of  the  com- 
modity of  the  said  mine,  imposed  so  many  and  so  great  threats  upon 
his  workmen,  and  all  comers  disturbed,  threatening  to  mayhem  and 
vex  them  with  suits  if  they  bought  any  stones ; whereupon  they  all 
desisted  from  buying,  and  the  others  from  working,  &c. 

After  judgment  by  nihil  dicit  for  the  plaintiff,  and  damages  found  by 
inquisition  to  fifteen  pounds,  it  was  moved  in  arrest  of  judgment,  that 
this  action  lay  not ; for  nothing  is  alleged  but  only  words,  and  no  act 
nor  insult : and  causeless  suits  on  fear  are  no  cause  of  action. 

Sed non  allocatur  : for  the  threatening  to  mayhem,  and  suits,  whereby 
they  durst  not  work  or  buy,  is  a great  damage  to  the  plaintiff,  and  his 
losing  the  benefit  of  his  quarries  a good  cause  of  action : and  although 
it  be  not  shown  how  he  was  possessed  for  years,  by  what  title,  &c.,  yet 
that  being  but  a conveyance  to  this  action,  was  held  to  be  well  enough. 
And  adjudged  for  the  plaintiff. 


KEEBLE  v.  HICKERINGILL. 

In  the  Queen’s  Bench,  Trinity  Term,  1706. 

[Reported  in  11  East,  574,  note.] 

Action  upon  the  case.  Plaintiff  declares  that  he  was,  8th  November 
in  the  second  year  of  the  Queen,  lawfully  possessed  of  a close  of  land 
called  Minott’s  Meadow,  et  de  quodam  vivario , vocato  a decoy  pond, 
to  which  divers  wild  fowl  used  to  resort  and  come  : and  the  plaintiff  had 
at  his  own  costs  and  charges  prepared  and  procured  divers  decoy  ducks, 
nets,  machines,  and  other  engines  for  the  decoying  and  taking  of  the 
wild  fowl,  and  enjoyed  the  benefit  in  taking  them : the  defendant  know- 


112 


KEEBLE  V.  HICKERINGILL. 


[CHAP.  I. 


ing  which,  and  intending  to  damnify  the  plaintiff  in  his  vivary,  and  to 
fright  and  drive  away  the  wildfowl  used  to  resort  thither , and  deprive 
him  of  his  profit , did,  on  the  8th  of  November,  resort  to  the  head  of  the 
said  pond  and  vivary,  and  did  discharge  six  guns  laden  with  gunpowder, 
and  with  the  noise  and  stink  of  the  gunpowder  did  drive  away  the  wild 
fowl  then  being  in  the  pond  : and  on  the  11th  and  12th  days  of  Novem- 
ber the  defendant,  with  design  to  damnify  the  plaintiff,  and  fright 
away  the  wild  fowl,  did  place  himself  with  a gun  near  the  vivary,  and 
there  did  discharge  the  said  gun  several  times  that  was  then  charged 
with  the  gunpowder  against  the  said  decoy  pond,  whereby  the  wild  fowl 
were  frighted  away,  and  did  forsake  the  said  pond.  Upon  not  guilty 
pleaded,  a verdict  was  found  for  the  plaintiff  and  £20  damages. 

Holt,  C.  J.  I am  of  opinion  that  this  action  doth  lie.  It  seems  to 
be  new  in  its  instance,  but  is  not  new  in  the  reason  or  principle  of  it. 
For,  first,  this  using  or  making  a decoy  is  lawful.  Secondly,  this  em- 
ployment of  his  ground  to  that  use  is  profitable  to  the  plaintiff,  as  is 
the  skill  and  management  of  that  employment.  As  to  the  first,  every 
man  that  hath  a property  may  employ  it  for  his  pleasure  and  profit,  as 
for  alluring  and  procuring  decoy  ducks  to  come  to  his  pond.  To  learn 
the  trade  of  seducing  other  ducks  to  come  there  in  order  to  be  taken  is 
not  prohibited  either  by  the  law  of  the  land  or  the  moral  law ; but  it  is 
as  lawful  to  use  art  to  seduce  them,  to  catch  them,  and  destroy  them 
for  the  use  of  mankind,  as  to  kill  and  destroy  wild  fowl  or  tame  cattle. 
Then  when  a man  useth  his  art  or  his  skill  to  take  them,  to  sell  and  dis- 
pose of  for  his  profit ; this  is  his  trade  ; and  he  that  hinders  another  in 
his  trade  or  livelihood  is  liable  to  an  action  for  so  hindering  him.  Why 
otherwise  are  scandalous  words  spoken  of  a man  in  his  profession 
actionable,  when  without  his  profession  the}'  are  not  so?  Though  they 
do  not  affect  any  damage,  yet  are  they  mischievous  in  themselves  ; and 
therefore  in  their  own  nature  productive  of  damage  ; and  therefore  an 
action  lies  against  him.  Such  are  all  words  that  are  spoken  of  a man 
to  disparage  him  in  his  trade,  that  may  bring  damage  to  him  ; though 
they  do  not  charge  him  with  any  crime  that  may  make  him  obnoxious 
to  punishment ; as  to  say  a merchant  is  broken,  or  that  he  is  failing,  or 
is  not  able  to  pay  his  debts,  1 Roll.  60,  1 ; all  the  cases  there  put. 
How  much  more,  when  the  defendant  doth  an  actual  and  real  damage 
to  another  when  he  is  in  the  very  act  of  receiving  profit  by  his  employ- 
ment. Now  there  are  two  sorts  of  acts  for  doing  damage  to  a man’s 
employment,  for  which  an  action  lies ; the  one  is  in  respect  of  a 
man’s  privilege ; the  other  is  in  respect  of  his  property.  In  that  of 
a man’s  franchise  or  privilege  whereby  he  hath  a fair,  market,  or  ferry, 
if  another  shall  use  the  like  liberty,  though  out  of  his  limits,  he  shall 
be  liable  to  an  action  ; though  by  grant  from  the  King.  But  therein  is 
the  difference  to  be  taken  between  a liberty  in  which  the  public  hath  a 
benefit,  and  that  wherein  the  public  is  not  concerned.  22  H.  6.  14,  15. 
The  other  is  where  a violent  or  malicious  act  is  done  to  a man’s  occupa- 
tion, profession,  or  way  of  getting  a livelihood ; there  an  action  lies  in 


SECT.  II.] 


IBOTTSON  V.  PEAT. 


113 


all  cases.  But  if  a man  doth  him  damage  by  using  the  same  employ- 
ment ; as  if  Mr.  Hickeringill  had  set  up  another  decoy  on  his  own 
ground  near  the  plaintiff’s,  and  that  had  spoiled  the  custom  of  the 
plaintiff,  no  action  would  lie,  because  he  had  as  much  liberty  to  make 
and  use  a decoy  as  the  plaintiff.  This  is  like  the  case  of  11  H.  4,  47. 
One  schoolmaster  sets  up  a new  school  to  the  damage  of  an  ancient 
school,  and  thereby  the  scholars  are  allured  from  the  old  school  to  come 
to  his  new.  (The  action  there  was  held  not  to  lie.)  But  suppose  Mr. 
Hickeringill  should  lie  in  the  way  with  his  guns,  and  fright  the  boys 
from  going  to  school,  and  their  parents  would  not  let  them  go  thither ; 
sure  that  schoolmaster  might  have  an  action  for  the  loss  of  his  scholars. 
29  E.  3,  18.  A man  hath  a market,  to  which  he  hath  toll  for  horses 
sold  : a man  is  bringing  his  horse  to  market  to  sell : a stranger  hinders 
and  obstructs  him  from  going  thither  to  the  market:  an  action  lies, 
because  it  imports  damage.  Action  upon  the  case  lies  against  one 
that  shall  by  threats  fright  away  his  tenants  at  will.  9 H.  7,  8 ; 21 
H.  6,  31 ; 9 H.  7,  7 ; 14  Ed.  4,  7 ; Vide  Rastal.  662  ; 2 Cro.  423. 
Trespass  was  brought  for  beating  his  servant,  whereby  he  was  hin- 
dered from  taking  his  toll;  the  obstruction  is  a damage,  though  not 
the  loss  of  his  service. 


IBOTTSON  v.  PEAT. 

In  the  Exchequer,  May  1,  1865. 

[Reported  in  3 Hurlstone  Sp  Coltman,  644.] 

Bramwell,  B.1  I am  also  of  opinion  that  the  plaintiff  is  entitled  to 
judgment.  The  declaration  states  that  the  plaintiff  being  possessed  of 
certain  land,  the  defendant  unlawfully  and  with  intent  to  drive  and 
frighten  away  game  then  being  on  the  land  of  the  plaintiff,  and  to  pre- 
vent him  from  shooting  them,  fired  rockets  and  combustibles  close  to 
and  over  the  land  of  the  plaintiff,  so  as  to  be  a nuisance  to  him.  The 
defendant  by  his  plea  admits  that  the  matter  alleged  is  true,  but  sets 
up  a right  to  do  what  is  complained  of  for  the  purpose  attributed  to  the 
defendant  in  the  declaration,  viz.,  to  prevent  him  from  shooting  the 
game.  Then  what  is  the  reason  given?  It  is  this:  — “The  game 

10nly  the  opinion  of  Bramwell,  B.,  ia  given.  Pollock,  C.  B.,  Martin  and 
Pigott,  BB.,  concurred.  — Ed. 


114 


TARLETON  V.  M’GAWLEY. 


[CHAP.  I. 


which  I frightened  was  game  which  you  enticed  away  from  the  Duke  of 
Rutland’s  land,  by  placing  corn  and  other  food  for  them  on  your  land  ; 
and  therefore  I,  as  the  servant  of  the  Duke,  in  order  to  prevent  you 
from  shooting  the  game,  and  from  continuing  to  entice  them,  did  the 
acts  complained  of.”  In  my  opinion  that  is  a bad  plea.  There  is 
nothing  in  point  of  law  to  prevent  the  plaintiff  from  doing  that,  which 
the  plea  alleges  he  has  done.  I say  “ in  point  of  law,”  because  it  can- 
not be  contended  for  a moment  that  any  action  would  lie  against  the 
plaintiff.  As  to  the  propriety  of  such  conduct  between  gentlemen  and 
neighbors  I say  nothing.  Where  a person’s  game  is  attracted  from  his 
land,  he  ought  to  offer  them  stronger  inducements  to  return  to  it.  It  is 
like  the  case  I referred  to  in  the  course  of  the  argument,  Chasemore  v. 
Richards,1  which  shows  that  if  a man  has  the  misfortune  to  lose  his 
spring  by  his  neighbor  digging  a well,  he  must  dig  his  own  well  deeper. 

Judgment  for  the  plaintiff. 


TARLETON  and  Others  v.  M’GAWLEY. 

At  Nisi  Prius,  coram  Lord  Kenyon,  C.  J.,  December  21,  1804. 

[ Reported,  in  Peake , 205.] 

This  was  a special  action  on  the  case.  The  declaration  stated  that 
the  plaintiffs  had  sent  a vessel  called  the  “ Bannister,”  with  a crew  on 
board,  under  the  command  of  one  Thomas  Smith,  and  loaded  with 
goods  proper  for  trading  with  the  natives,  to  a part  of  the  coast  of 
Africa  called  Cameroon,  to  trade  with  the  natives  there.  That  while 
the  last-mentioned  ship  was  lying  off  Cameroon,  a canoe  with  some 
natives  on  board  came  to  the  same  for  the  purpose  of  establishing  a 
trade,  and  went  back  to  the  shore,  of  which  defendant  had  notice.  And 
that  he  well  knowing  the  premises,  but  contriving  and  maliciously  in- 
tending to  hinder  and  deter  the  natives  from  trading  with  the  said 
Thomas  Smith,  for  the  benefit  of  the  plaintiffs,  with  force  and  arms, 
fired  from  a certain  ship  called  the  “ Othello,”  of  which  he  was  master  and 
commander,  a certain  cannon  loaded  with  gunpowder  and  shot,  at  the 
said  canoe,  and  killed  one  of  the  natives  on  board  the  same.  Whereby 
the  natives  of  the  said  coast  were  deterred  and  hindered  from  trading 
with  the  said  T.  Smith  for  the  benefit , cfic.,  and  plaintiffs  lost  their 
trade. 

Lord  Kenyon.  This  action  is  brought  by  the  plaintiffs  to  recover  a 

1 2 H.  & N.  168  ; 7 H.  L.  349. 


SECT.  II.]  MURDOCK,  KERR  & CO.  V.  WALKER.  115 

satisfaction  for  a civil  injur)’  which  they  have  sustained.  The  injury 
complained  of  is,  that  by  the  improper  conduct  of  the  defendant  the 
natives  were  prevented  from  trading  with  the  plaintiffs.  The  whole  of 
the  case  is  stated  on  the  record,  and  if  the  parties  desire  it,  the  opinion 
of  the  court  may  hereafter  be  taken  whether  it  will  support  an  action. 
I am  of  opinion  it  will.  Had  this  been  an  accidental  thing,  no  action 
could  have  been  maintained ; but  it  is  proved  that  the  defendant  had 
expressed  an  intention  not  to  permit  any  to  trade,  until  a debt  due 
from  the  natives  to  himself  was  satisfied.  If  there  was  any  court  in  that 
country  to  which  he  could  have  applied  for  justice  he  might  have  done 
so,  but  he  had  no  right  to  take  the  law  into  his  own  hands. 


MURDOCK,  KERR  & CO.  v.  WALKER  etal. 

In  the  Supreme  Court  of  Pennsylvania,  1893. 

[. Reported  152  Pa.  St.  595.] 

Bill  in  equity  for  injunction. 

The  bill  averred  that  plaintiffs  are  job  printers  who  employ  a large 
number  of  journeyman  printers  and  pressmen  ; that  about  October  1, 
1891,  the  printers  and  pressmen,  then  employed  by  plaintiffs,  refused 
to  work  unless  paid  higher  wages  ; that  plaintiffs  offered  them  work 
at  the  wages  theretofore  paid;  defendants  are  members  of  associa- 
tions known  as  Typographical  Union  No.  7,  and  Pressmen’s  Union 
No.  13,  and  the  workmen  employed  by  plaintiffs  since  October  1, 
1891,  are  not  members  of  said  associations  ; that,  ever  since  October  1, 
1891,  defendants,  with  others  unknown,  have  unlawfully  combined 
and  conspired  to  prevent  plaintiffs  from  taking  into  and  retaining  in 
their  employ  printers,  not  members  of  said  unions,  who  would  work 
at  the  wages  plaintiffs  were  willing  to  pay,  and  to  drive  away  work- 
men employed  by  plaintiffs,  with  malicious  intent  to  control  and 
injure  the  business  of  plaintiffs  and  to  compel  them  to  pay  the  wages 
demanded  by  the  workmen  who  left  their  employment,  and  to  employ 
only  members  of  said  unions,  in  pursuance  of  which  conspiracy 
defendants  have  attempted  to  accomplish  their  unlawful  purpose  by 
threats,  menaces,  intimidation,  and  opprobrious  epithets  addressed  to 
plaintiffs’  workmen,  by  gathering  in  crowds  about  plaintiffs’  place 
of  business  and  places  where  plaintiffs’  workmen  board,  following 
said  workmen  to  and  from  their  work,  holding  them  up  to  the  ridicule 
and  contempt  of  bystanders,  and  divers  other  means  of  violence  and 
intimidation;  that  such  unlawful  acts  and  conduct  of  defendants 


116 


MURDOCK,  KERR  & CO.  V.  WALKER. 


[CHAP.  I. 


have  deprived  plaintiffs  of  the  services  of  many  men  who  were  ready 
and  willing  to  work,  and  impeded  and  damnified  plaintiffs  in  their 
business ; and  that  defendants  intend  to  continue  their  unlawful 
practices  if  not  enjoined  therefrom.  The  prayers  were  for  injunction 
and  general  relief. 

Per  Curiam,  January  3,  1893:  — 

This  is  an  appeal  from  the  decree  of  the  Court  of  Common  Pleas 
No.  3,  of  Allegheny  County,  restraining  the  defendants  from  gather- 
ing about  plaintiffs’  place  of  business,  and  from  following  the  work- 
men employed  by  plaintiffs,  or  who  may  hereafter  be  so  employed,  to 
and  from  their  work,  and  gathering  about  the  boarding  houses  of  said 
workmen ; and  from  any  and  all  manner  of  threats,  menaces,  intimi- 
dation, opprobrious  epithets,  ridicule,  and  annoyance  to  and  against 
said  workmen  or  any  of  them,  for  or  on  account  of  their  working  for 
the  plaintiffs. 

The  decree  is  affirmed,  for  the  reasons  given  by  the  learned  judge 
of  the  court  below  in  his  opinion,  and  the  appeal  dismissed  at  the 
costs  of  the  appellants. 

Force  upon  the  Customer.  — Anon.,  Y.  B.  9 H.  VII.  7 ; Garrett  v.  Taylor,  Cro.  Jac. 
567  ; Iveson  v.  Moore,  12  Mod.  262  ; Tarleton  v.  McGaulev,  Peake,  270  ; R.  v.  Hibbert,  13 
Cox,  82  ; Re  Debs,  158  U.  S.  564  ; Mackall  t\  Ratchford,  *82  Fed.  41;  Dixon  v.  Dixon,  33 
La.  Ann.  1261 ; Mobile  v.  Supply  Co.,  30  So.  445  ; R.  R.  v.  Hunt,  55  Vt.  570.  — Ed. 


SECT.  II.]  GRAHAM  V.  ST.  CHARLES  STREET  R.  R.  CO.,  ETC.  117 


( b ) Without  Force. 

NOTE. 

[Comyri’s  Digest , Tit.  Action,  A.  1.] 

In  all  cases  where  a man  has  temporal  loss,  or  damage  by  the  wrong 
of  another,  he  may  have  an  action  on  the  case  to  be  repaired  in  dam- 
ages. 


[ NICHOL  v.  MAETYN. 

Nisi  Prius,  1799. 

[Deported  2 Esp.  732.1] 

This  was  a special  action  on  the  case  against  the  defendant  for 
seducing  the  plaintiffs’  customers.  The  plaintiffs  were  wholesale 
ironmongers ; the  defendant  had  been  employed  as  their  traveller, 
and  the  foundation  of  the  action  was  that  the  defendant  had  told  the 
country  shopkeepers  on  his  last  coming  that  he  was  himself  going 
into  the  same  business  after  Christmas , and  would  then  be  obliged  to 
them  for  an  order  on  his  own  account. 

Lord  Kenyon,  Chief  Justice.  A servant,  while  engaged  in  the 
service  of  his  master,  has  no  right  to  do  any  act  which  may  injure 
his  trade  or  undermine  his  business  ; but  every  one  has  a right,  if  he 
can,  to  better  his  situation  in  the  world ; and  if  he  does  it  by  means 
not  contrary  to  law  it  is  damnum  sine  injuria  ; this  request  of  business 
for  himself  was  prospective. 


GEAHAM  v.  ST.  CHAELES  STEEET  EAILEOAD  CO.  AND 
THOMAS  NEWMAN. 

In  the  Supreme  Court  of  Louisiana,  1895. 

[Reported  47  La.  Ann.  215.] 

Nicholls,  C.  J.  The  action  is  founded  upon  the  following  alle- 
gations : That  Newman  is  the  foreman  of  the  company,  and  as  such 
has  the  power  of  employing  and  discharging  its  employes  ; that  for  a 
considerable  time,  less  than  one  year,  he  has  persistently  abused  his 
power  to  injure  the  plaintiff  in  his  business  of  grocer ; that  Newman 
has  instructed  men  in  his  employ  that  they  must  not  deal  at  peti- 

1 This  case  is  abridged. — Ed. 


118 


ROBISON  V.  TEXAS  PINE  LAND  ASSOCIATION.  [CHAP.  I. 

tioner’s  store,  and  that  he  would  discharge  them  if  they  did  j the  in- 
jury which  he  estimates  at  not  less  than  five  hundred  dollars. 

The  issue  before  us  is  whether,  while  the  plaintiff,  engaged  in  a 
lawful  business,  is  legitimately  earning  his  livelihood  by  and  through 
the  patronage  of  others,  the  defendant,  a corporation,  and  its  foreman, 
having  the  power  of  discharging  large  numbers  of  persons,  can,  with- 
out incurring  legal  liability  therefor,  without  justifiable  cause,  and 
moved  solely  by  malicious  and  wanton  intent  and  design  to  injure  the 
plaintiff,  use  their  power  of  employment  and  discharge  upon  persons 
seeking  employment  from  them,  or  already  in  their  employ,  so  as  to 
cause  those  who  are  already  dealing  with  the  plaintiff  to  desist  from 
further  doing  so,  and  those  who  would  desire  to  do  so  from  carrying 
out  their  wishes  by  threats  of  non-employment  or  discharge.  In  so 
doing,  the  defendant  would  not  only  control  their  own  will,  action,  and 
conduct,  but  forcibly  control  and  change,  from  pure  motives  of 
malice,  the  choice  and  will  of  others  to  the  injury  and  damage  of  the 
plaintiff. 

Remanded. 


ROBISON  v.  TEXAS  PINE  LAND  ASSOCIATION. 

In  the  Court  of  Civil  Appeals  of  Texas,  1897. 

[ Reported  40  S.  W.  Rep . 843.] 

James,  C.  J.  The  petition  to  which  demurrers  were  sustained  is 
quite  lengthy,  and  we  copy  appellant’s  statement  of  its  nature : “ The 
suit  is  for  damages  growing  out  of  the  conduct  of  the  defendant  in 
issuing  checks  at  its  store  at  Silsbee,  Hardin  County.  The  original 
suit  was  for  the  value  of  $154  in  value  of  defendant’s  pay  checks,  and 
for  damages  for  boycotting  plaintiff  and  breaking  up  his  saloon  busi- 
ness, located  about  three  miles  from  defendant’s  store.  The  district 
court  held  that  there  was  a misjoinder  of  actions.  The  plaintiff  then 
dismissed  the  claim  for  the  $154  in  checks,  and  amended  his  petition, 
claiming  only  the  damages  by  the  destruction  of  his  business.  The 
checks  are  made  of  cardboard,  l£  inches  in  diameter,  with  these  words 
printed  around  the  outer  edge  : ‘ Texas  Pine  Land  Association,  Sils- 
bee, Texas.’  And  across  the  face  these  words  : ‘ Good  for  $1  in  mer- 
chandise at  the  store.  Not  transferable.’  That  some  of  said  checks 
are  for  smaller  amounts  than  $1.  That  on  the  reverse  side  of  checks 
is  the  name  ‘ Jas.  L.  Kirby  ’ written  thereon.  The  defendant  opened 
its  store  in  1894,  and  was  engaged  in  cutting  and  shipping  logs  to 
sawmills  at  Beaumont,  and  issued  said  checks  in  payment  of  wages 
to  its  employes,  who  then  took  the  same  to  the  store,  and  purchased 
such  goods  as  were  needed.  That  the  words  1 Not  transferable  ’ are 
upon  each  check,  yet  the  employes  of  the  defendant  bought  country 
produce  of  the  people,  and  paid  for  the  same  in  checks,  and  that  these 
people,  who  were  not  employes  of  defendant,  and  never  had  been, 


SECT.  II.]  ROBISON  V.  TEXAS  PINE  LAND  ASSOCIATION.  119 

bought  goods  of  defendant  at  its  store,  and  paid  for  same  in  checks, 
and  said  employes  bought  goods  of  defendant  and  paid  in  checks,  and 
said  employes  bought  goods  of  defendant  [plaintiff]  and  paid  in 
checks,  and  he  in  turn  bought  goods  of  plaintiff  [defendant],  and  paid 
for  same  in  these  checks,  and  traded  some  of  the  checks  to  others 
who  were  not  employes  of  defendant,  who  bought  goods  of  defendant 
and  paid  in  checks  ; and  that  the  defendant  knew  of  this  trade  in  its 
checks,  and  did  not  object  thereto  until  the  plaintiff  had  a great  many 
of  them,  and  then  refused  to  take  the  checks  from  him  in  payment 
of  goods,  and  refused  to  take  checks  from  persons  who  had  bought  or 
traded  for  same  with  plaintiff.  And  the  defendant,  for  the  purpose 
of  injuring  plaintiff  in  his  business,  at  a time  after  the  plaintiff  had 
taken  and  received  the  checks  of  the  defendant  which  he  now  has, 
stated  to  its  employes  that  it  (defendant)  would  discharge  each  and 
every  one  of  its  employes  from  its  service  in  case  any  one  of  them 
should  buy  goods,  liquors,  etc.,  or  trade  in  any  manner  whatever  with 
the  plaintiff ; and,  further,  the  defendant  then  and  there  stated  to  its 
clerks  and  other  employes  that  it  would  not  take  up  any  checks,  and 
receive  the  same  in  payment  of  its  goods,  wares,  and  merchandise, 
from  any  person  whomsoever,  when  and  where  said  checks  had  passed 
through  the  hands  of  Jim  Kobison,  the  plaintiff.  Plaintiff  further 
alleges  that  he  was  at  this  time  making  a profit  of  $150  a month  in 
his  business ; that  among  his  customers  were  the  defendant’s  employes, 
and  other  persons  who  used  defendant’s  checks,  and  that,  by  reason 
of  defendant’s  order  to  its  employes,  he  could  no  longer  take  the 
checks,  except  a few,  and  his  customers  could  not  trade  with  him, 
etc. ; and  that  he  was  thereby  damaged  by  loss  of  trade  in  the  amounts 
as  claimed.”  The  petition  further  disclosed  that  plaintiff  was  en- 
gaged in  selling  goods  of  the  same  kind  and  quality  as  were  sold  at 
defendant’s  store  to  some  of  defendant’s  employes  and  other  people  in 
the  neighborhood ; in  other  words,  that  they  were,  to  some  extent, 
competitors  in  trade.  There  is  also  an  allegation  that  defendant  had, 
by  its  agents  and  employes,  and  for  its  own  dishonest  and  corrupt 
purposes,  and  for  the  purpose  of  destroying  the  competition  in  trade 
of  plaintiff  in  the  sale  of  goods,  wares,  and  merchandise,  threatened 
its  employes  with  discharge  if  they  refused  to  sign  a certain  petition 
for  a local  option  election,  or  if  they  voted  against  the  same,  — plain- 
tiff being  engaged  in  the  sale  of  liquors,  — which  election,  if  it  had. 
carried,  would  have  closed  up  plaintiff’s  business.  This  is  alleged 
probably  to  show  the  malice  of  defendant  towards  plaintiff.  The 
action  upon  the  checks  that  had  been  taken  by  plaintiff  in  trade  was 
abandoned,  and  the  prayer  of  the  amended  petition  was  for  $650 
actual  and  $1000  punitory  damages,  for  loss  of  business  through  the 
act  of  defendant  in  threatening  its  employes  with  discharge  in  case 
they  should  trade  with  plaintiff,  and  in  announcing  its  determination 
not  to  honor  any  checks  that  passed  through  the  hands  of  plaintiff. 

The  principles  stated  in  Delz  v.  Winfree,  80  Tex.  400, 16  S.  W.  Ill, 
apply  in  this  case.  See,  also,  Graham  v.  Railroad  Co.  (La.)  16  South 


120  KOBISON  V.  TEXAS  PINE  LAND  ASSOCIATION.  [CHAP.  I. 

806.  According  to  plaintiff’s  allegations,  competition  in  trade  existed 
between  plaintiff  and  defendant,  and  it  was  legitimate  for  defendant 
to  appropriate  to  itself  all  the  customers  it  could  command,  even  to 
the  extent  of  driving  plaintiff  out  of  business,  provided  the  means 
used  for  that  purpose  did  not  contravene  any  law,  or  violate  a definite 
legal  right  of  plaintiff.  The  latter  had  no  legal  right  to  protection 
against  competition.  He  had  no  superior  right  to  the  trade  of  defend- 
ant’s employes  or  that  of  other  persons.  Poll.  Torts,  408.  The 
statute  in  reference  to  conspiracies  against  trade  does  not  apply  to 
this  case,  where  there  is  no  combination,  and  when  the  acts  com- 
plained of  as  affecting  competition  are  the  acts  of  defendant  alone. 
If  the  defendant  could  so  control  its  employes  as  to  prevent  their 
dealing  with  plaintiff,  or  so  control  their  wages  as  to  divert  them 
from  the  channels  of  plaintiff’s  business  in  favor  of  its  own,  we  know 
of  no  rule  making  it  actionable.  Had  the  defendant  no  proper  in- 
terest of  its  own  to  subserve  in  so  doing,  but  had  acted  wantonly  in 
causing  loss  to  plaintiff,  the  rule  would  be  different.  The  fact  that 
defendant’s  purpose  by  its  acts  was  to  break  plaintiff  up  in  business 
would  not  give  the  cause  of  action,  for  that  is  the  natural  result  of 
successful  competition.  Defendant  might  at  any  time  have  stopped 
the  issuing  of  checks,  and  plaintiff  could  not  have  complained.  It 
had  a right,  if  the  employes  were  satisfied  to  work  on  such  terms, 
to  pay  the  latter  directly  in  goods,  and  he  could  not  complain,  or  in 
checks  redeemable  in  goods  only  by  them  and  certain  other  persons. 
It  could  not  be  required  to  treat  the  checks  as  money  in  the  hands 
of  other  persons,  which  is  practically  a contention  of  plaintiff.  If 
they  could  stop  the  system  altogether  without  giving  a right  of  action 
in  tort,  it  would  follow  that  they  could  place  restrictions  on  the  use 
of  checks  without  incurring  such  liability.  This  is  not  a suit  to  re- 
cover the  value  of  checks  taken  by  appellant,  but  one  in  which  he 
seeks  to  recover  in  tort  for  the  invasion  of  a right,  when  he  fails  to 
show  the  existence  of  any  right.  A system  whereby  such  checks 
would  be  honored  in  the  hands  of  any  one  except  plaintiff  was  calcu- 
lated to  insure  trade  at  defendant’s  store,  and  diminish  that  of  its 
rival ; and,  as  plaintiff  has  no  definite  right  to  the  public  trade,  he  has 
no  legal  right  to  complain  that  defendant  absorbed  it  by  the  manner 
of  managing  its  business,  and  its  relation  with  its  employes.  The 
judgment  is  affirmed. 


SECT.  IT.] 


ALLEN  V.  FLOOD  AND  TAYLOR. 


121 


ALLEN  v.  FLOOD  and  TAYLOK. 

In  the  House  of  Lords,  1898. 

[Reported  1898,  A.  C.  1.1] 

[Flood  and  Taylor  were  members  of  the  Shipwright’s  Union ; 
Allen  was  delegate  of  the  Society  of  Boilermakers.  Allen  threatened 
the  Glengall  Iron  Co.  that  unless  Flood  and  Taylor  were  discharged, 
he  would  call  out  the  Boilermakers  next  day  ; Flood  and  Taylor  were 
turned  off,  and  subsequently  sued  Allen.  The  Divisional  Court  held 
for  the  plaintiffs ; the  Court  of  Appeal  affirmed ; but  the  House  of 
Lords  reversed.  Part  of  the  opinion  of  Lord  Macnaughten  was  as 
follows : — ] 

Now  before  I proceed  to  consider  the  legal  grounds  on  which  Ken- 
nedy, J.,  and  the  Court  of  Appeal  decided  the  case  against  Allen,  I 
should  like  to  ask  what  there  was  wrong  in  Allen’s  conduct.  He  had 
nothing  to  do  with  the  origin  of  the  ill-feeling  against  Flood  and 
Taylor.  He  did  nothing  to  increase  it.  He  went  to  the  dock  simply 
because  he  was  sent  for  by  one  of  the  men  of  his  union.  It  seems  to 
be  considered  the  duty  of  a district  delegate  to  listen  to  the  grievances 
of  the  members  of  his  union  within  his  district,  and  to  settle  the  dif- 
ficulty if  possible.  The  jury  found  that  the  settlement  of  this  dis- 
pute was  a matter  within  Allen’s  discretion.  The  only  way  in  which 
he  could  settle  it  was  by  going  and  seeing  the  manager.  There  was 
surely  nothing  wrong  in  that.  There  was  nothing  wrong  in  his  telling 
the  manager  that  the  iron-men  would  leave  their  work  unless  the  two 
shipwrights  against  whom  they  had  a grudge  were  dismissed,  if  he 
really  believed  that  that  was  what  his  men  intended  to  do.  As  far  as 
their  employers  were  concerned,  the  iron-men  were  perfectly  free 
to  leave  their  work  for  any  reason,  or  for  no  reason,  or  even  for  a bad 
reason ; any  one  of  them  might  have  gone  singly  to  the  manager,  or 
they  might  have  gone  to  him  all  together  (if  they  went  quietly  and 
peaceably),  and  told  him  that  they  would  not  stay  any  longer  with 
Flood  and  Taylor  at  work  among  them. 

If  so,  it  is  difficult  to  see  why  fault  should  be  found  with  Allen  for 
going  in  their  place  and  on  their  behalf  and  saying  what  they  would 
have  said  themselves. 

As  regards  the  meaning  of  the  word  “ induce,”  I do  not  think  the 
jury  got  much  assistance.  I rather  gather  from  the  summing-up  that 
the  jury  were  given  to  understand  that  if  they  thought  that  Allen 
merely  represented  the  state  of  things  as  it  was  — and  the  feeling  of 
the  iron-men  at  the  Regent’s  Dock  — they  would  be  at  liberty  to 
answer  the  questions  put  to  them  about  Allen  in  the  negative.  But 
the  answer  must  be  the  other  way  if  they  thought  that  Allen  went 
further,  and  assumed  to  represent  the  union,  and  to  speak  as  if  he 

1 This  case  is  much  abridged.  — Ed. 


122 


ALLEN  V.  FLOOD  AND  TAYLOR. 


[CHAP.  I. 


had  the  power  of  the  union  at  his  back ; that  would  be  a threat  and 
would  amount  to  “inducing.”  Now,  I must  say  that  I do  not  think  it 
can  be  said  that  Allen  did  “ induce  ” the  company  to  discharge  the 
plaintiffs.  Certainly  it  cannot  be  truly  said  that  he  procured  them 
to  be  discharged.  It  was  not  his  act  that  prevented  the  company 
from  continuing  to  employ  them.  If  the  whole  story  had  been  a 
fiction  and  an  invention  on  his  part  I could  have  understood  the  find- 
ing of  the  jury.  But  I do  not  think  there  was  any  misrepresentation 
on  Allen’s  part.  I do  not  think  there  was  any  exaggeration.  Nor, 
indeed,  was  any  such  point  made  at  the  trial. 

So  we  see  now,  I think,  what  the  findings  of  the  jury  come  to,  if 
they  are  to  be  treated  as  being  in  accordance  with  the  evidence. 
They  must  mean  that  Allen  induced  the  company  to  discharge  the 
plaintiffs,  by  representing  to  the  manager,  not  otherwise  than  in 
accordance  with  the  truth,  the  state  of  feeling  in  the  yard,  and  the 
intentions  of  the  workmen,  and  that  he  did  so  “ maliciously,”  because 
he  must  have  known  what  the  issue  of  his  communication  to  the 
manager  would  be,  and  naturally  perhaps  he  was  not  sorry  to  see  an 
example  made  of  persons  obnoxious  to  his  union.  But  is  his  conduct 
actionable  ? It  would  be  very  singular  if  it  were.  No  action  would 
lie  against  the  company  for  discharging  the  two  shipwrights.  No 
action  would  lie  against  the  iron-men  for  striking  against  them.  -No 
action  would  lie  against  the  officers  of  the  union  for  sanctioning  such 
a strike.  But  if  the  respondents  are  right  the  person  to  answer  in 
damages  is  the  man  who  happened  to  be  the  medium  of  communica- 
tion between  the  iron-men  and  the  company,  — the  most  innocent 
of  the  three  parties  concerned,  for  he  neither  set  the  “ agitation  ” 
on  foot,  nor  did  he  do  anything  to  increase  it,  nor  was  his  the  order 
that  put  an  end  to  the  connection  between  employer  and  employed. 
It  seems  to  me  that  the  result  would  have  been  just  the  same  if 
Edmonds  had  told  Mr.  Halkett  what  was  going  on  in  the  yard,  or  if 
Mr.  Halkett  had  learned  it  from  Flood  and  Taylor  themselves. 

Even  if  I am  wrong  in  my  view  of  the  evidence  and  the  verdict,  if 
the  verdict  amounts  to  a finding  that  Allen’s  conduct  was  malicious 
in  every  sense  of  the  word,  and  that  he  procured  the  dismissal  of 
Flood  and  Taylor,  that  is,  that  it  was  his  act  and  conduct  alone  which 
caused  their  dismissal,  and  if  such  a verdict  were  warranted  by  the 
evidence,  I should  still  be  of  opinion  that  judgment  was  wrongly 
entered  for  the  respondents.  I do  not  think  that  there  is  any  founda- 
tion in  good  sense  or  in  authority  for  the  proposition  that  a person 
who  suffers  loss  by  reason  of  another  doing  or  not  doing  some  act 
which  that  other  is  entitled  to  do  or  to  abstain  from  doing  at  his  own 
will  and  pleasure,  whatever  his  real  motive  may  be,  has  a.  remedy 
against  a third  person  who,  by  persuasion  or  some  other  means  not  in 
itself  unlawful,  has  brought  about  the  act  or  omission  from  which  the 
loss  comes  even  though  it  could  be  proved  that  such  person  was 
actuated  by  malice  towards  the  plaintiff,  and  that  his  conduct,  if  it 
could  be  inquired  into,  was  without  justification  or  excuse. 


ALLEN  V . FLOOD  AND  TAYLOR. 


123 


SECT.  II.] 


The  case  may  be  different  where  the  act  itself  to  which  the  loss  is 
traceable  involves  some  breach  of  contract  or  some  breach  of  duty, 
and  amounts  to  an  interference  with  legal  rights.  There  the  imme- 
diate agent  is  liable,  and  it  may  well  be  that  the  person  in  the  back- 
ground who  pulls  the  strings  is  liable  too,  though  it  is  not  necessary 
in  the  present  case  to  express  any  opinion  on  that  point. 

But  if  the  immediate  agent  cannot  be  made  liable,  though  he  knows 
what  he  is  about,  and  what  the  consequences  of  his  action  will  be,  it 
is  difficult  to  see  on  what  principle  a person  less  directly  connected 
with  the  affair  can  be  made  responsible  unless  malice  has  the  effect  of 
converting  an  act  not  in  itself  illegal  or  improper  into  an  actionable 
wrong.  But  if  that  is  the  effect  of  malice,  why  is  the  immediate 
agent  to  escape  ? Above  all,  why  is  he  to  escape  when  there  is  no 
one  else  to  blame  and  no  one  else  answerable  ? And  yet  many  cases 
may  be  put  of  harm  done  out  of  malice  without  any  remedy  being 
available  at  law.  Suppose  a man  takes  a transfer  of  a debt  with 
which  he  has  no  concern  for  the  purpose  of  ruining  the  debtor,  and 
then  makes  him  bankrupt  out  of  spite,  and  so  intentionally  causes 
him  to  lose  some  benefit  under  a will  or  settlement,  — suppose  a man 
declines  to  give  a servant  a character  because  he  is  offended  with  the 
servant  for  leaving,  — suppose  a person  of  position  takes  away  his 
custom  from  a country  tradesman  in  a small  village  merely  to  injure 
him  on  account  of  some  fancied  grievance  not  connected  with  their 
dealings  in  the  way  of  buying  and  selling,  — no  one,  I think,  would 
suggest  that  there  could  be  any  remedy  at  law  in  any  of  those  cases. 
But  suppose  a customer,  not  content  with  taking  away  his  own  cus- 
tom, says  something  not  slanderous  or  otherwise  actionable  or  even 
improper  in  itself  to  induce  a friend  of  his  not  to  employ  the  trades- 
man any  more.  Neither  the  one  nor  the  other  is  liable  for  taking 
away  his  own  custom.  Is  it  possible  that  the  one  can  be  made  liable 
for  inducing  the  other  not  to  employ  the  person  against  whom  he  has 
a grudge  ? If  so,  a fashionable  dressmaker  might  now  and  then,  I 
fancy,  be  plaintiff  in  a very  interesting  suit.  The  truth  is,  that  ques- 
tions of  this  sort  belong  to  the  province  of  morals  rather  than  to  the 
province  of  law.  Against  spite  and  malice  the  best  safeguards  are  to 
be  found  in  self-interest  and  public  opinion.  Much  more  harm  than 
good  would  be  done  by  encouraging  -or  permitting  inquiries  into 
motives  when  the  immediate  act  alleged  to  have  caused  the  loss  for 
which  redress  is  sought  is  in  itself  innocent  or  neutral  in  character, 
and  one  which  anybody  may  do  or  leave  undone  without  fear  of  legal 
consequences.  Such  an  inquisition  would,  I think,  be  intolerable,  to 
say  nothing  of  the  probability  of  injustice  being  done  by  juries  in  a 
class  of  cases  in  which  there  would  be  ample  room  for  speculation 
and  wide  scope  for  prejudice. 

In  order  to  prevent  any  possible  misconstruction  of  the  language  I 
have  used,  I should  like  to  add  that  in  my  opinion  the  decision  of  this 
case  can  have  no  bearing  on  any  case  which  involves  the  element  of 
oppressive  combination.  The  vice  of  that  form  of  terrorism  com- 


r 


124  ALLEN  V.  FLOOD  AND  TAYLOR.  [CHAP.  I. 

monly  known  by  the  name  of  “ boycotting, ” and  other  forms  of  oppres- 
sive combination,  seem  to  me  to  depend  on  considerations  which  are, 
I think,  in  the  present  case,  conspicuously  absent. 

No  Force  upon  the  Customer.  — Anon.,  Y.  B.  11  H.  IY.  47  ; Nichol  v.  Martyn,  2 Esp. 
732  ; Rogers  v.  Dutt,  13  Moo.  P.  C.  209  ; Mogul  S.  S.  Co.  v.  McGregor,  1892,  A.  C.  25  ; 
Dueber  Co.  v.  Howard  Co.,  66  Fed.  637;  Gunther  v.  Altman,  60  N.  E.  355  ; Fallon  v. 
Schilling,  29  Kans.  292  ; Hundley  v.  R.  R.,  48  S.  W.  429  ; Graham  v.  R.  R.,  47  La.  Ann. 
214  ; Heyward  v.  Tileson,  75  Me.  225  ; Walker  v.  Cronin,  107  Mass.  505  ; Malian  v.  Brown, 
13  Wend.  261 ; Payne  v.  R.  R.,  13  Lea  507;  Robinson  v.  Land  Co.,  40  S.  W.  843  ; Reycroft 
v.  Traintor,  68  Vt.  219.  — Ed. 


